Is History Repeating Itself? Sentencing Young American Muslims in the War on Terror

abstract. The United States’ aggressive War on Terror policies since 9/11
have led to significant prison sentences for many young American Muslims, even
when their charged criminal conduct cannot be tied to any act of violence in
the United States or abroad. A primary reason provided for their severe
punishment is that these individuals are uniquely dangerous, cannot be deterred
or rehabilitated, and must be incapacitated to protect society from their ideologically
violent goals. In the 1980s and 1990s, similar accusations were raised in the
War on Drugs against young African-Americans, who were described as remorseless
“super-predators” and received lengthy sentences in an effort to reduce drug
and gang violence across the United States. Through a comparative analysis
between federal sentencing policies in the Wars on Terror and Drugs, this Feature
explains how these policies have disproportionately targeted particular minority
communities and have led to sentences for young nonviolent offenders that undermine
effective strategies to combat violence in the United States. In response to
harms created by the War on Drugs, policymakers have instituted numerous
reforms to reduce the length of drug-related sentences and focus on alternative
means of addressing drug crimes and rehabilitating offenders. However, as this
Feature explains, the lessons learned from counterproductive War on Drugs
sentencing policies have not yet been translated to the War on Terror. This
Feature advocates for a more effective and just counterterrorism strategy that
would provide for greater nuance in sentencing terrorism offenders and focus on
rehabilitation rather than on lengthy punitive incarceration.

author. Yale Law School, J.D. 2009; Oxford
University, MSt 2007;
Stanford University, B.A. 2003. I would like to thank Rhea Fernandes
and the editors of the Yale Law Journal
for their careful editing and thoughtful feedback.

Introduction

Since 9/11, the
U.S. government has undertaken an aggressive War on Terror to target violent
extremist groups like Al Qaeda and ISIS that are based in Muslim-majority
countries. In recent years, a handful of violent shootings and bombings by
self-identified Muslims in Boston, San Bernardino, and Orlando—in addition to
more deadly attacks in Europe, Africa, South Asia, and the Middle East—have
exacerbated fears of terrorism and the need to combat it. For the most part,
the United States has adopted a zero-tolerance, preventative counterterrorism
strategy of arresting anyone who may support foreign terrorist groups and
incapacitating them with lengthy terms of incarceration. Federal law
enforcement has a variety of tools at its disposal to implement this policy,
including “material support for terrorism” statutes to prosecute offenders and
sentencing guidelines to put them away for decades in prison. These tactics
have been used even when the offenders’ conduct cannot be tied to any act of
violence in the United States or abroad. A primary justification given for
these extraordinarily punitive measures is that those affiliated with terrorist
activity—primarily young Muslim men—are uniquely dangerous: because they cannot
be deterred or rehabilitated, they must instead be incapacitated to protect
society from their ideologically violent goals.

Twenty to
thirty years ago, similar accusations were levied against another group of
individuals—young African American men—in the War on Drugs. Concerned about the
rise of drug and gang violence in the 1980s and 1990s, government officials
argued that remorseless inner-city “super-predators” must be incapacitated to
stem the tide of death and destruction across the United States.1 To address the problem, the
government instituted a series of harsh penalties to significantly increase the
criminal sentences for a wide range of drug-related conduct. However, the
majority of individuals sentenced were not hardened violent criminals, but
rather nonviolent low-level drug offenders.2 Many now recognize that
these War on Drugs policies have caused significant and disproportionate harm
to African American communities, where one-third of African American men are
expected to be incarcerated during their lifetime.3 In recent years, changes in Supreme
Court precedent, the United States Sentencing Guidelines, and charging policies
have led to a reduction in the length of drug-related sentences, and
policymakers have focused on alternative means of addressing drug crimes and
rehabilitating offenders.

Similar to the
War on Drugs, many of the individuals that have been sentenced in the War on
Terror are not hardened remorseless terrorists. In fact, a number are young,
disaffected American Muslims with little to no criminal history, whose anger
over the killings of Muslims throughout the Middle East and the discrimination
against Muslims in the United States has made them susceptible to the views of
terrorist groups like ISIS.4
Furthermore, just like the War on Drugs, the government’s sentencing
policies—in particular the Sentencing Guidelines’ Terrorism Enhancement—fail to
take into account the differences between a violent terrorist who has killed
dozens and an American Muslim teenager who tweets support for ISIS online.
Despite these similarities, this Feature contends that the lessons learned from
counterproductive War on Drugs sentencing laws have not yet been translated to
the War on Terror. Instead, terrorism sentencing policies have caused harm to
Muslim communities similar to that of African American communities in the War
on Drugs. This is despite the fact that Muslims convicted of terrorism offenses
make up only a few hundred of the millions of Muslims living in the United
States.5 And, like the War on Drugs, the War
on Terror policies have failed to serve the purposes
of criminal sentencing or to contribute to an effective counterterrorism
policy.

This Feature
proceeds in four Parts. Part I provides a background
of the sentencing policies of the Wars on Terror and Drugs that have led to
long prison terms. It argues that these policies fail to take into account the
seriousness of the offense and the characteristics of the individual defendant.
Part II demonstrates how policymakers justified these laws by arguing that the
“unique” nature of the individuals who commit certain drug and terrorism offenses
makes them unable to be rehabilitated or deterred. This Part further argues
that this premise has no support, and as a result, young Muslims and African Americans
have received sentences for nonviolent conduct that far exceed the purposes of
federal sentencing delineated by Congress. While acknowledging that the
percentage of African Americans imprisoned under the War on Drugs policies has
been much higher than that of Muslims imprisoned under the War on Terror
policies, Part III explains how these lengthy sentences have negatively
impacted African American and Muslim communities in similar ways, including
increased discrimination, distrust of law enforcement, and the failure to
effectively rehabilitate offenders. Part IV explains how recent reforms have
been implemented to counter these harmful consequences of the War on Drugs,
leading to lower sentences and a renewed focus on rehabilitating drug
offenders. However, the lessons learned from the War on Drugs have not been
applied to the more recent War on Terror. The government has failed to
sufficiently address similar concerns in the War on Terror largely due to an
oversized fear of foreign terrorists groups as well as the desire of government
officials to be viewed as “tough” on terrorism without realizing the
significant adverse consequences of their policies. Just as with the recent
changes to drug sentencing policies, a more effective and just counterterrorism
strategy would provide for greater nuance in sentencing terrorism offenders and
focus on rehabilitation rather than only on lengthy punitive incarceration.

i. criminal sentencing in the wars on terror and drugs

A. War on Terror

Soon after 9/11, the U.S. government launched the War on
Terror to destroy Al Qaeda and other like-minded terrorist groups that
threatened the United States and its allies.6 As part of the War on
Terror, the government adopted a strategy of proactively preventing terrorist
attacks before they take place and incapacitating any individual who supports
terrorist organizations. Attorney General John Ashcroft instructed the
Department of Justice to “prevent first, prosecute second.”7 To achieve this goal, the
government expanded a series of laws and policies to allow law enforcement
officials to arrest individuals well before they can commit or support violent
acts and sentence them to lengthy terms of incarceration.8 These changes included broadening
the Sentencing Guidelines Terrorism Enhancement and federal terrorism statutes.9 As George Brown writes, “If prevention is at the heart of counter-terrorism, harsh
sentences seem appropriate here as well.”10
The government does not want to “wait until there are victims of
terrorist attacks to fully enforce the nation’s criminal laws against
terrorism.”11

1. The Sentencing Guidelines Terrorism Enhancement

The primary reason why individuals
convicted of terrorism-related conduct have received extraordinarily long
criminal sentences is due to section 3A1.4 of the United States Sentencing
Guidelines, also known as the “Terrorism Enhancement.”12
The Terrorism Enhancement significantly increases the sentencing range (known
as the “Guidelines range”) that federal judges use when deciding the
appropriate term of incarceration.

The Terrorism Enhancement is just one of many adjustments
contained in the Guidelines created by the United States Sentencing Commission.13 The Guidelines establish
various sentencing ranges based on a chart cross-referencing forty-three
“offense levels” with six “criminal history” categories.14 For example, someone
convicted of a serious crime with an offense level of forty-two and a lengthy
criminal history (Category VI) would receive a Guidelines range of 360 months
to life, while someone convicted of a lesser crime with an offense level of
twelve and very little criminal history (Category I) would receive a Guidelines
range of ten to sixteen months.15
The Guidelines also contain many adjustments based on the characteristics of
the offense, the offender, or the victim.16 The adjustments can
increase or decrease the offense level and/or the criminal history category.
The Terrorism Enhancement is one such adjustment.

While federal judges were originally required to sentence
defendants within the calculated Guidelines range, in 2005 the Supreme Court in
United States v. Booker struck down
the mandatory Guidelines regime as unconstitutional.17 Although the Guidelines are
now only advisory, they continue to be the starting point to calculate the
sentence for every federal offense, and courts, for the most part, attempt to
sentence individuals within the range. For example, in 2015, 76.6% of
defendants received a sentence either within the Guidelines range or below the
range when the proposed sentence was sponsored by the prosecution.18 Moreover, if a court elects
to impose a sentence outside the range, it must demonstrate why it is
reasonable to do so.19Therefore, the Guidelines, including the Terrorism
Enhancement, still play an important role in determining the sentences of
individuals convicted of terrorism offenses.

The Terrorism Enhancement was
created pursuant to the Violent Crime Control and Law Enforcement Act of 1994,
where Congress directed the Sentencing Commission “to provide an
appropriate enhancement for any felony, whether committed within or outside the
United States, that involves or is intended to promote
international terrorism, unless such
involvement or intent is itself an element of the crime.”20 Although the Enhancement initially applied only to
international terrorism, the Antiterrorism and Effective Death Penalty Act of
1996 expanded the Terrorism Enhancement to apply to domestic terrorism as well.21After
9/11, the USA PATRIOT Act further expanded the Enhancement, making it
applicable to a broad category of terrorism-related offenses, including: (1)
crimes involving terrorism, but not falling within the statutory definition of
“federal crime of terrorism”; (2) obstructing an investigation of a federal
crime of terrorism; (3) harboring or concealing a terrorist; and (4) intending
to influence the government’s conduct by intimidation or coercion, retaliate
against government conduct, or influence a civilian population by intimidation
or coercion.22 In addition to the
commission of the actual crime, the Terrorism Enhancement also applies to
inchoate offenses.23
Therefore, while the Guidelines usually permit an offense level reduction for
uncompleted crimes under section 2X1.1(b),24 for terrorism offenses, defendants
who conspire or attempt to commit a crime are treated exactly the same as those
who actually commit the crime.

Although the Terrorism Enhancement
has been expanded significantly to apply to a broad range of conduct, its
effect on an individual’s sentence has remained the same since its enactment. A
defendant’s offense level is increased by twelve levels, but cannot be lower
than thirty-two.25 His criminal history category is also increased to
Category VI, the highest level.26
The minimum Guidelines range under the Terrorism Enhancement is 210 to 262
months (17.5 to 21.8 years).27 Of all the
adjustments in the Guidelines, the Terrorism Enhancement is the most severe.28 As an
example, the Enhancement can lead to a sentence from thirty years to life for a
crime that would otherwise result in a sentence of around five years.29

2. The Exceptionality of Terrorism Sentencing

Post-Booker, federal courts are instructed to fashion a sentence
based on a variety of statutory factors under 18 U.S.C. § 3553(a),
including “the nature and circumstances of the offense and the history and characteristics
of the defendant.”30
However, unlike with other crimes, sentencing in the terrorism context—and the
Terrorism Enhancement especially—fails to address these factors. The Terrorism
Enhancement treats all offenders the same, without taking into account their
actual conduct or individual background, such as age and criminal history.31 Thus, the Enhancement undermines a
basic principle of U.S. sentencing law and its underlying commitment to
retributive justice: that punishment should be proportional to the crime.32

Criminal conduct subject to the Enhancement varies
significantly: from planning and participating in a violent attack that kills
hundreds of people to making false statements to law enforcement officials. Yet
the Terrorism Enhancement does not take into account this broad range of conduct,
and the resulting Guidelines range is often inconsistent with the actual
statutes that criminalize the underlying conduct in the first place. For
example, the material support for terrorism statutes prohibit providing
“material support”—such as money, training, expert advice, and assistance—to
terrorists.33 Unlike the Enhancement,
these statutes recognize that different levels of support require different
punishments. While 18 U.S.C. § 2339A permits a maximum sentence of fifteen
years, if death is caused by the support provided, the maximum increases to
life imprisonment.34
Furthermore, under section 2339C, if financial support is provided with
the intent to fund an act of terrorism, the maximum sentence is twenty years.35 But if someone only conceals
such financial support, the maximum is reduced to ten years.36 Contrary to these varying
levels of punishment, the minimum
sentence under the Terrorism Enhancement is 17.5 years, regardless of the type
of material support provided.37
Therefore, while the material support statutes demonstrate that Congress
indicated that sentences should be “proportional to the culpability of the
conduct, to the injury that can be directly attributed to a defendant’s
actions, and to the nature of the organization’s actions,”38 the Terrorism Enhancement
treats those who provide any type of material support to a terrorist as harshly
as the terrorist who commits the violent act.39

Others have recognized that the seriousness of terrorism
offenses differs based on the underlying conduct. Christina Parajon
Skinner, for example, divides offenders into “hard core” and “soft core”
groups.40 Hard-core defendants are
those that have committed “terroristic acts or attempts, [when] there are no
mitigating circumstances to consider.”41 As an example, Skinner
provides Zacarias Moussaoui, the “twentieth
hijacker,” who received a life sentence for his role in the 9/11 attacks and
never demonstrated remorse for his actions.42 For these individuals, long
sentences “are proportional to the threat they pose.”43 On the other hand,
soft-core defendants include individuals “whose conduct has less directly
threatened U.S. interests,” such as those convicted of providing material
support or in sting operations initiated by government informants.44

One thing that many of these soft-core defendants have in
common is that their actions did not lead to any identifiable harm or imminent
risk of harm. In the regular sentencing context, the lack of actual harm
usually reduces a defendant’s sentence pursuant to 18 U.S.C. § 3553(a)(2)(A)’s
instruction to consider “the seriousness of the offense” as well as section 2X1.1(b)(1)-(2)
of the Guidelines, which provides for an offense-level reduction for
uncompleted crimes.45
However, for the Terrorism Enhancement, the fact that the defendant’s conduct
caused no harm does not matter. For this reason, the Enhancement treats individuals
convicted after sting operations the same as those for whom the government
played no role in assisting with their planned attack. Terrorism sentencing
fails to take into account the fact that a defendant’s intent, knowledge, and
capability of committing the crime is usually much lower when an informant is
involved. As Joshua Dratel states, “[I]t will always be unclear just what the defendant would
have done—or not done—absent the
solicitation, encouragement, and assistance of government operatives,” and the
defendant “might not have presented a danger except in conjunction with a
confidential informant.”46 However, that defendant receives the same punitive sentencing
enhancement as a hardened terrorist.

The Terrorism Enhancement also does
not take into account the individual characteristics of each defendant. The
young American Muslims analyzed in this Feature all have little to no criminal
history, and but for the Terrorism Enhancement would have been placed in
Category I instead of VI, which could have reduced their potential Guidelines
sentence by fifteen years or more.47
The Sentencing Commission has recognized that individuals with no criminal
record have the lowest rate of recidivism. One study determined that 93.2% of
first-time offenders did not recidivate.48
In other situations for defendants with no criminal history, courts have given
sentences below the advisory Guidelines range, recognizing that a lesser term
of incarceration is still a substantial punishment and deterrent for someone
who has never experienced prison before.49
However, such considerations do not apply for most terrorism defendants.50

B. War on Drugs

Decades before the federal
government established policies like the Terrorism Enhancement as part of the
War on Terror, it created a series of laws to ensure that those convicted of
drug crimes received lengthy jail time as part of the War on Drugs. And, just
like the War on Terror, the War on Drugs’ sentencing policies failed to take
into account the nature of the offense and individual circumstances of the defendant.
Instead, the policies required lengthy sentences for a broad range of conduct,
including low-level drug offenses that were not tied to the violent gang
activity that the policies were intended to address.

The beginning of the War on Drugs is often attributed to
President Nixon, who in 1971 decried drug abuse as “public enemy number one”
and later created the Office of Drug Abuse Law
Enforcement, the precursor to the Drug Enforcement Administration.51
In the 1980s and 1990s, the crack-cocaine epidemic and inner-city gang violence
led Congress to adopt harsh consequences for drug offenders.52Congress
passed the Anti-Drug Abuse Act in 1986, which created
twenty-nine mandatory minimum sentences for drug offenses.53
The law also created a one hundred-to-one sentencing disparity for crack versus
powder cocaine, in which a person required only five grams of crack cocaine (as
opposed to 500 grams of powder cocaine) to trigger a five-year mandatory
minimum.54
Additionally, to address what President Clinton characterized as the
“[g]angs and drugs [that] have taken over our streets
and undermined our schools,”55
Congress enacted the Violent Crime Control and Law Enforcement Act of 1994.56 The Act created a federal
“three strikes” provision establishing a mandatory life sentence for individuals
convicted of a “serious violent felony” if they had two or more prior
convictions, at least one of which was a “serious violent felony,” and the
other of which was either a “serious violent felony” or a “serious drug
offense.”57

The Guidelines range for drug crimes increased significantly
as well. For example, a first-time offender who was convicted of distributing
500 grams of methamphetamine would receive between ten to twelve years in
prison, higher than for “forcible rape, killing a person in voluntary
manslaughter, disclosing top secret information, and violent extortion of more
than $5 million involving serious bodily injury.”58The
Sentencing Commission also created the Career Offender Guideline, which established
a much higher Guidelines range for individuals convicted of a “controlled
substance offense” or “crime of violence” with at least two prior felony convictions
of either a “controlled substance offense” or “crime of violence.”59

Similar to the War on Terror sentencing policies, many of
these laws restricted a judge’s ability to consider the seriousness of the
criminal conduct and circumstances of the individual defendant when formulating
a sentence. Indeed, a primary reason Congress created
high mandatory sentences in the War on Drugs was to take away the discretion
that judges had previously used to assess the individual characteristics of
each defendant, for fear that the judges were imposing lenient sentences that
failed to sufficiently protect the public.60 And, just like the terrorism
context, drug sentencing policies not only applied to violent and hardened
offenders, but also a broad range of nonviolent offenders. For example, the
Career Offender Guideline defines “crime of violence” and “controlled substance
offense” broadly, and like the Terrorism Enhancement, automatically increases a
defendant’s criminal history category to VI, regardless of his actual criminal
history.61 Therefore, a typical
defendant receiving a lengthy sentence pursuant to this Guideline has been a
low-level, nonviolent drug offender whose previous convictions were for “crimes
of violence” that did not involve any actual violent conduct and minor drug
offenses.62

ii. Justifying Lengthy Sentences in the Wars on Terror and Drugs

Although neither the terrorism nor
the drug sentencing laws discussed above explicitly targeted one specific
religious, ethnic, or racial group, both the Wars on Terror and Drugs have
disproportionately affected particular segments of the American public: Muslims
and African Americans, respectively. With the War on Terror, even though
Muslims do not commit acts of terrorism in the United States at higher levels
than other communities,63
Muslims are disproportionately targeted by government counterterrorism
policies.64 The reason is obvious. The primary
focus of the War on Terror has not been to eliminate all forms of terrorism,
but rather to combat violent attacks from Al Qaeda—the perpetrators of the 9/11
attacks—and like-minded groups such as ISIS.65 Similarly, with the War on Drugs, even though they were no more likely than whites to use
or sell illegal drugs,66 African Americans were far more likely to be arrested for
drug crimes, and received much stiffer sentences.67 This too
was based on government objectives not to focus on all drug crimes, but rather
primarily those that were tied to gang violence in predominantly African American
communities.68

Interestingly, when justifying the
application of these stringent sentencing policies to young American Muslims
and African Americans, policymakers and commentators have used notably similar
reasons: these dangerous individuals are uniquely incapable of being rehabilitated
and deterred in the short-term and must be incapacitated with lengthy terms of
incarceration. And, in both cases, these justifications are unsupported.
Instead, the punishment given to many American Muslims and African Americans
has been much “greater than necessary” to achieve the purposes of federal
sentencing.69

A. War on Terror

1. Justification for Terrorism Sentencing

As explained above, unlike in other
contexts, terrorism sentencing fails to sufficiently address how much harm the
defendant has caused, and instead the Terrorism Enhancement creates lengthy
sentences for a broad range of conduct.70
Legislators and courts have justified adopting these long sentences
based on their view that terrorism as an offense, and terrorists as individuals,
are uniquely situated among all crimes and criminals, which supports fundamentally
altering the sentencing process.

When Congress requested that the Sentencing Commission enact
the Terrorism Enhancement in 1994, the Commission had initially expressed
reservations because the proposed adjustment would not take into account the
fact that “defendants who share a common
terrorist objective may vary greatly in terms of the threat to persons and
national security that they realistically pose.”71In
response, the Chair of the Attorney General’s Subcommittee on Sentencing
Guidelines disregarded the Commission’s nuanced view of terrorism offenses and
instead urged the Commission to enact the Enhancement “in order to
combat this serious threat to public safety.”72 For this reason, as Second
Circuit Judge Walker explains, the Terrorism Enhancement “reflects Congress’
[sic] and the Commission’s policy judgment that an act of terrorism represents
a particularly grave threat because of the dangerousness of the crime and the
difficulty of deterring and rehabilitating the criminal, and thus that
terrorists and their supporters should be incapacitated for a longer period of
time” than other criminals.73 Courts have thus justified applying the Terrorism Enhancement
by stating that “terrorists[,] [even those] with no
prior criminal behavior[,] are unique among criminals in the likelihood of
recidivism, the difficulty of rehabilitation, and the need for incapacitation.”74
As Wadie Said notes, this belief “that
terrorism is different, maybe even exceptional” is premised on “a type of
visceral outrage at all conduct linked to terrorists that can taint the individualized
and careful process that is supposed to go into a criminal sentencing” and
“justifies a departure from the normal standards.”75

The idea that those convicted of
terrorism offenses cannot be rehabilitated or deterred stems from the belief
that, unlike other criminal conduct, the primary motivation of terrorism is
ideological. Indeed, when urging Congress to pass the USA PATRIOT Act—legislation that expanded both the Terrorism
Enhancement and material support laws—Attorney General John Ashcroft described
terrorists as “savage,” “freedom’s enemies, murderers of innocents in the name
of a barbarous cause,” who are “undeterred by the threat of criminal sanctions”
and “willing to sacrifice the lives of their members in order to take the lives
of innocent citizens of free nations.”76 And, at the USA PATRIOT
Act’s signing ceremony, President George W. Bush added that the law “will help
counter a threat like no other our nation has ever faced . . . .
They recognize no barrier of morality; they have no conscience. The terrorists
cannot be reasoned with.”77
Pursuant to this argument, terrorists must be incapacitated and detained for
extraordinarily long periods of time so they do not return to supporting their
violent ideological goals.78

2. Sentencing Young, Nonviolent American Muslims

Because federal terrorism sentencing laws do not adequately
take into account the severity of the offense or the characteristics of the
individual, the premise that those who commit terrorist crimes cannot be
deterred or rehabilitated is then applied to the many young, nonviolent
American Muslims convicted of terrorism-related offenses since 9/11. These
individuals have little to no criminal history (particularly no crimes of
violence), were convicted of terrorism offenses that caused no actual harm to
others, and became subject to government scrutiny because they had expressed
extreme views either consistent with or in support of foreign terrorist
organizations like Al Qaeda and ISIS. In this category, I exclude individuals
who have attempted to commit actual violent acts and failed to do so only
because of happenstance or law enforcement intervention. However, I do include
Muslims whose proposed attacks were doomed to fail from the beginning because
they were instigated by government informants. In informant cases, it is unclear
if the defendants ever would have attempted any violent acts but for the informants’
involvement.79

Young, nonviolent American Muslims make up the majority of
the approximately 400 individuals charged with crimes connected to Al Qaeda and
related terrorist groups since 9/11.80 Since the designation of ISIS as a
terrorist organization in 2014, there has been an increased focus on arresting,
detaining, and charging these individuals with terrorism crimes.81 Federal prosecutors have charged
over 106 individuals in connection with ISIS and have convicted fifty.82 The majority arrested for
ISIS-related activity have also been young, nonviolent American Muslims: their
average age is twenty-six; ninety percent are U.S. citizens or permanent
residents; seventy-three percent were not involved in plotting terrorist
attacks in the United States; fifty-five percent were arrested after
interacting with government informants; and most were charged with material
support offenses, such as traveling, or attempting to travel, abroad to join
ISIS.83

These young American Muslims largely fit into the following
three categories: those convicted of (1) material support offenses, (2) taking
part in a plot assisted by government informants, and (3) making false
statements to government officials. For each category, I present two case
studies that provide concrete examples of how federal courts have given these
individuals lengthy sentences despite their young age, lack of actual harm
committed, negligible criminal history, expressions of remorse, and other
mitigating factors. As the case studies show, for the most part, courts have
applied the Terrorism Enhancement, leading to a significant Guidelines range
and ultimate sentence.

a. Material Support Offenses

The material support statutes, 18
U.S.C. §§ 2339A and 2339B, have allowed the government to prosecute young
American Muslims for a broad range of conduct. Section 2339A prohibits
the provision of “material support or resources” while “knowing or intending
that they are to be used in preparation for, or in carrying out,” enumerated
terrorism crimes.84Section 2339B prohibits “knowingly provid[ing] material support or
resources” to an organization that has been designated as a “foreign terrorist
organization” by the Secretary of State.85 Therefore, unlike section 2339A, where the provision of material support
must be tied to an actual crime, section 2339B criminalizes any support given to a designated
foreign terrorist organization, even if the support was intended for peaceful
purposes. “Material support” includes any tangible or intangible property or service,
such as training, expert advice, or assistance.86

The material support statutes have
allowed the government to convict young American Muslims for a variety of
nonviolent conduct that is only tangentially related to terrorist activity,
including translating and publishing extremist materials online as well as
storing clothing for an alleged terrorist.87
Once convicted, the Sentencing Guidelines—especially the Terrorism Enhancement—leads
these individuals to receive lengthy sentences. For example, a defendant
convicted under section 2339B would be subject to a Guidelines range of
thirty years to life. Although the statutory maximum is only twenty years for
each count, prosecutors can charge individuals with multiple counts to reach
the recommended Guidelines range.88

The material support statutes are two of the more widely used
tools in the War on Terror. One study found the largest share of convictions in
terrorism cases since 9/11 was for material support offenses.89 Below are two examples of
young American Muslims who have received long sentences based on the material
support statutes.

i. Shelton Bell

Shelton Bell was a high school dropout when he began viewing
online videos from extremist Anwar al-Awlaki.90 When Bell was eighteen, he
and a friend traveled to the Middle East to join a terrorist organization.91 Their plans were foiled
when they were detained by authorities in Jordan and returned to the United
States.92Bell
pleaded guilty to conspiracy and attempt to provide material support to
terrorists.93

At sentencing, the judge applied the Terrorism Enhancement.94 Although Bell’s only prior
criminal offenses were a trespass conviction and a violation of a temporary
injunction barring contact with his mother’s boyfriend, the Enhancement placed
him in the highest criminal history category.95 Bell’s Guidelines range was
life imprisonment. However, because the statutory maximum was fifteen years for
each count, the maximum sentence that Bell could have received was thirty
years.96 Bell’s attorney argued that
he did not commit any terrorist acts, nor did he have the funds or connections
to help terrorist organizations.97
Bell added that “he made a grievous, immature mistake, and that he no longer
subscribes to al-Awlaki’s hate-filled agenda. He expresses
remorse to his family, his friends, his fellow Muslims, and the Court, stating
that his goal now is to be a productive citizen, raise a family, get an MBA,
and even study terrorism and how to combat it.”98 The government rejected
Bell’s apology, arguing he was a terrorist who “poses a likelihood of
recidivism, no meaningful chance of rehabilitation, and . . . a
heightened risk of dangerousness.”99 Bell was sentenced to
twenty years.100

ii. Ali Shukri Amin

Ali Shukri Amin was a high school
honor student who used Twitter to post thousands of messages in support of
ISIS, including instructions on how to make anonymous donations to ISIS and on
how to travel to Syria to join ISIS.101 Amin also helped his friend travel
to Syria in January 2015.102
Amin was subsequently arrested by the FBI and pleaded guilty to conspiring to
provide material support to ISIS.

At sentencing, the government argued that Amin should receive
the statutory maximum of fifteen years based on the “harm that the defendant
has caused to this community, the scope of his conduct, and the danger he will
continue to pose to society.”103Amin’s attorney requested six years, noting Amin’s young age
and lack of criminal record. Amin apologized for his support for ISIS,
stating that he “became lost and caught up in something that takes the greatest
and most profound teachings of Islam and turns them into justifications for
violence and death.”104
Amin added that his online acquaintances “treated me with respect and
occasionally reverence. For the first time I was not only being taken seriously
about a very important and weighty topics [sic], but was actually being asked
for guidance.”105
Amin was sentenced to eleven years.106

b. Informant Plots

Another major counterterrorism policy has been the use of
government informants. Nearly fifty percent of federal terrorism convictions
since 9/11 have been based on information obtained from informants.107 Approximately thirty
percent were sting operations in which an FBI informant “was directly involved
in proposing, crafting, facilitating, and inducing a terrorist plot.”108

The government’s aggressive use of sting operations has been
criticized for targeting individuals who may never have taken part in terrorist
activities but for the informants’ intervention.109 The FBI has targeted young
Muslims with extremist views, “who ha[ve] shown no
signs of mastering basic life functions, let alone carrying out a serious
terror attack, and ha[ve] no known involvement with
actual terrorist groups.”110
Sometimes, the FBI designs the attack plan, and the informant convinces the
target to carry it out.111
Despite the informant’s large role in the crime, Muslims charged in these plots
rarely avoid criminal liability by raising the entrapment defense, the primary
way the American legal system regulates sting operations.112 For an entrapment defense to succeed,
two elements must be established: (1) the government “induced” the defendant to
commit the crime, and (2) the defendant was not independently “predisposed” to
commit the crime.113
The predisposition element leads to the introduction of character evidence,114 which in terrorism cases
includes the defendant’s extremist views and is usually enough for an American
jury to conclude that the defendant was predisposed to commit the crime.115

Below are two examples of American Muslims who received long
sentences based on informant-led prosecutions.

i. James Cromitie

James Cromitie was an impoverished
Muslim who expressed vitriolic anti-Semitic views when he met an FBI informant
at his mosque. The informant constructed a plot in which Cromitie
and three others would fire rocket-propelled grenades at Stewart Air Base and
place bombs at a New York synagogue. After resisting the informant’s advances
for months, Cromitie agreed to take part in the plot
when the informant offered him $250,000.116Cromitie
was arrested while planting phony explosive devices given to him by the informant.
At trial, Cromitie was convicted of conspiracy and
attempt to use weapons of mass destruction, and conspiracy and attempt to
acquire and use anti-aircraft missiles, among other charges.117

Despite Cromitie’s conviction, the
judge stated after trial that Cromitie “was incapable
of committing an act of terrorism on his own,” and that the FBI “created acts
of terrorism out of his fantasies of bravado and bigotry, and then made those
fantasies come true.”118
The judge nevertheless sentenced Cromitie to
twenty-five years. At sentencing, she explained that the Terrorism Enhancement
applied, that Cromitie’s Guidelines range was life
imprisonment, and the anti-aircraft missile offenses carried a twenty-five-year
mandatory minimum sentence.119

ii. Rezwan Ferdaus

RezwanFerdaus,
age twenty-five, lived in Massachusetts when he met an FBI informant at his
mosque.120 The informant not only introduced Ferdaus to two FBI undercover agents pretending to be Al Qaeda
terrorists, but also provided him with financial assistance for a plot to
attack the Pentagon and U.S. Capitol building using remote-controlled drone
planes containing explosives followed by a ground attack with automatic
weapons.121 While the plot was
unfolding, Ferdaus was suffering from mental and
physical disabilities, including depression, seizures, weight loss, and loss of
bladder control.122
The FBI agents also supplied Ferdaus with materials
for the attack: grenades, machine guns, explosives, and a remote-controlled
plane.123

Ferdaus was subsequently arrested
and charged with six counts, including “attempting to damage and destroy a
federal building . . . by means of
an explosive” and “attempting to provide material support to terrorists.”124 If he were found guilty at
trial, Ferdaus’s Guidelines range would have been
life imprisonment, due in part to the application of the Terrorism Enhancement.125 Instead, Ferdaus entered into a plea agreement and agreed to a
seventeen-year sentence.126

c. Making False Statements

The third way that young American Muslims have received
lengthy sentences for nonviolent terrorism-related conduct is by making false
statements to government officials. One common charge is violation of 18 U.S.C.
§ 1001, which states that “in any matter within the jurisdiction” of the
federal government, it is prohibited to “knowingly and willfully” make
“materially false . . . or
fraudulent statement[s]” or conceal information.127 While the maximum sentence
for most section 1001 violations is five years for each count, the maximum
increases to eight “if the offense involves international or domestic terrorism.”128 However, because each
false statement can be considered a separate “count,”129 defendants in terrorism
cases can be charged with multiple counts, and their sentences can exceed eight
years.130 Other related charges
include 18 U.S.C. § 1623, for making false material declarations to a
grand jury, and 18 U.S.C. § 1503, for obstructing justice on account of
making false statements.131
In one analysis of hundreds of terrorism cases, the third highest share of convictions
was for making false statements.132 In recent years, young
American Muslims have been charged under section 1001 when statements made
during FBI interviews were inconsistent with their social media activity.133 Below are two examples of Muslims
who have received long sentences for making false statements.

i. Sabri Benkahla

SabriBenkahla,
a twenty-seven-year-old college graduate, had been acquitted of charges of
providing services to the Taliban during a trip to Afghanistan.134 He subsequently was subpoenaed to
testify before two grand juries regarding his activities in Afghanistan and was
questioned by the FBI.135
Finding Benkahla’s answers untrustworthy, the
government charged him with making false declarations to the grand juries,
making false statements to the FBI, and obstructing justice. Benkahla was convicted on all those counts.136

At sentencing, the parties disputed whether the Terrorism
Enhancement should apply. Because Benkahla had no
criminal history, without the Enhancement, his Guidelines range would have only
been thirty-three to forty-one months. With the Enhancement, his range jumped
to 210 to 262 months.137
The judge held that the Enhancement applied because Benkahla’s
conduct concerned “federal crimes of terrorism” and had impeded the government’s
investigation into potential terrorist activity.138 However, the judge also
stated that “SabriBenkahla
is not a terrorist,” that he “has not committed any other criminal acts,” and
that “his likelihood of doing so upon release is ‘infinitesimal.’”139 Therefore, the court
varied downward and sentenced Benkahla to 121 months,
still four times longer than what he would have received but for the Terrorism
Enhancement.140

ii. Abdel Hameed Shehadeh

Abdel Hameed Shehadeh was a
teenager when he became subject to government surveillance due to extremist
websites that he ran.141
He attempted to travel to Pakistan and told U.S. officials that he was planning
on visiting a religious school. However, the government believed Shehadeh wanted to join the Taliban.142Shehadeh
was convicted of three counts of making false statements to federal agents.143

At sentencing, the judge ruled that the Terrorism Enhancement
did not apply because Shehadeh’s “deception and lies”
did not “‘promot[e]’ the commission of” a federal
terrorism offense.144
Because of Shehadeh’s lack of criminal history, his
Guidelines range was only sixty-three to seventy-eight months.145 However, the judge applied
a significant upward variance and sentenced Shehadeh
to 156 months.146
The judge stated that “[w]hileShehadeh
displayed a significant level of immaturity and ineptness throughout the course
of his criminal conduct, there is no question that his
conduct was extremely serious and warrants a substantial period of
incarceration.”147
Thus, even in cases where the Terrorism Enhancement is not applicable, defendants
have still received very long sentences simply because their conduct could potentially
relate to terrorist activity.

3. Terrorism Sentencing Is Based on an Unsupported Premise

Many of these lengthy sentences given to young Muslims could
be justified if the basic premise of terrorism sentencing were correct: that all
individuals who commit terrorism-related offenses are uniquely incapable of
being deterred and rehabilitated such that a special rule is necessary.
However, this premise is unsupported and leads to
high sentences that are not connected to the characteristics of the offense or
the individual defendant, the actual deterrent value, or the ability of the
defendant to be rehabilitated.148

a. Ideology Is Not the Primary Motivation for Many Who Commit Terrorism Offenses

As explained above, one reason
policymakers have provided for why individuals who commit terrorism offenses
cannot be deterred or rehabilitated is that their criminal activity is
ideologically motivated.149 However, that assumption is unsupported. Despite years of analysis, social
scientists and policy analysts have no clear answer as to what leads people to
support and commit violent acts on behalf of terrorist groups like ISIS.150 While most agree that there is no
single profile of why one chooses to participate in terrorist activity,151 potential factors include political
grievances, mental illness, economic stress, trauma, and a sense of belonging,
adventure, and notoriety.152 What is clear is that “ideology
alone—even endorsement of terrorist activity—is such a poor predictor of actual
terrorist activity that [it] is almost worthless.”153 Indeed, a study by the
United Kingdom’s MI5 intelligence agency based on in-depth case studies of
hundreds of individuals associated with terrorist activity found that “[f]ar from being religious zealots, a large number of those
involved in terrorism do not practise their faith
regularly. Many lack religious literacy and could actually be regarded as
religious novices.”154
Another review of 500 cases and many other empirical studies have found that “a
lack of religious literacy and
education appears to be a common feature among those that are drawn to [terrorist]
groups.”155 Because “[t]he ideology . . . is a secondary concern,”
even FBI analysts are taught to “use actions, not ideas, to determine whether
someone might carry out an attack.”156

b. Terrorism Sentencing Is Not Supported By Empirical Evidence

Neither the Sentencing Commission nor the courts applying the
Terrorism Enhancement have provided any empirical evidence to support the
presumption that terrorism defendants are uniquely dangerous. The legitimacy of
the Guidelines is derived from the belief that they are based on reliable data
and principles.157
However, when the Terrorism Enhancement was promulgated, no statistically sound
evidence was used to substantiate that all terrorism defendants were so different
as to necessitate such a large increase in the Guidelines range.158 Similarly, courts of
appeals upholding the idea that terrorism defendants “are
unique amongcriminals in the likelihood of
recidivism, the difficulty of rehabilitation, and theneed for incapacitation” have also not cited any evidence
to support that opinion.159

Moreover, while the Commission has recognized that first-time
offenders rarely recidivate, it has provided no evidence that those convicted
of terrorism offenses are an exception to this rule and recidivate at higher
rates.160While
“the question of recidivism after terrorism-related detention is empirically
fraught,”161 the very limited available data suggests that individuals
convicted of terrorism offenses do not
recidivate at higher rates than those convicted of other crimes. Of the more
than 300 prisoners who have completed their terrorism sentences since 2001,
“Justice Department officials and outside experts could identify only a handful
of cases in which released inmates had been rearrested, a rate of relapse far
below that for most federal inmates . . . .”162

c. Individuals Who Commit Terrorism Offenses Can Be Deterred

Contrary to the assumption that all
those convicted of terrorism offenses cannot be deterred and the only adequate
deterrence is full incapacitation, terrorism experts and government officials
have recognized that terrorists and their supporters cannot be considered as a
monolith, and many can be deterred.163 Skinner,
for example, notes that outside “a relatively small group of decision-makers,”
most “terrorist operatives participate as agents, not as initiators.”164
These agents can be deterred by cutting their “ideological ties to a larger
terrorist network.”165 Matthew Kroenig and Barry Pavel
add that because “[m]any terrorist leaders, financiers, supporters, radical
clerics, and other members of terrorist networks value their lives and
possessions,” “[s]imple threats of imprisonment and
death against these actors can deter terrorist activity.”166
They provide examples of radical clerics in the United Kingdom being deterred
from preaching incendiary sermons by threats of imprisonment, donors in Saudi
Arabia being deterred from financing terrorism due to increased scrutiny, and
the Moro Islamic Liberation Front in the Philippines being deterred from
cooperating with Al Qaeda by the threat of U.S. retaliation.167

Similarly, Samuel J. Rascoff notes that “[t]errorist
foot soldiers behave differently than operational commanders, financiers, and
propagandists,” with “[s]ome groups [being] more
readily deterrable than others.”168
Yet, he adds that this recognition of deterrence “has been largely lost on
lawyers, judges, and legal academics, resulting in significant gaps between the
practice of national security in this area and the legal architecture
ostensibly designed to undergird and oversee it.”169
One aspect of this legal architecture is the Terrorism Enhancement, which fails
to acknowledge that “adequate deterrence” may differ based on the circumstances
surrounding a defendant’s conduct and should be taken into account in
sentencing.

d. Individuals Who Commit Terrorism Offenses Can Be Rehabilitated

Finally, the assumption that terrorism offenders cannot be
rehabilitated is also unsupported. While the United States has largely taken a
punitive approach toward terrorism convicts,170 other countries that have
experienced more immediate and extensive threats from young people joining
extremist groups have implemented rehabilitation programs focusing on mental health, educational,
family, economic, and religious counseling and social services. In
places like Germany and Northern Ireland, such programs were initially created
to address violence coming from domestic groups, like neo-Nazis, right-wing extremists,
and ultranationalists.171 With the rise of Middle East-based
terrorist organizations, countries throughout the world have established
similar programs, including Saudi
Arabia, Algeria, Egypt, Jordan, Yemen, Singapore, Indonesia, Malaysia, the
United Kingdom, and Denmark.172 Some of these programs are
alternatives to incarceration, while others provide rehabilitative services in
conjunction with criminal proceedings, and participation can lead to shorter
sentences.173 Many of these programs
have been successful in rehabilitating terrorism offenders and helping them
adjust back into society.174For example, in one Danish town, about 330
individuals—including eighteen who had returned from Syria—have participated in
a rehabilitation program, leading to a significant decrease in the number of
young Muslims joining ISIS, from thirty in 2013 to only one the following year.175 Moreover, in the Saudi
Arabian program, about 1,400 individuals have renounced their past terrorist
activities, and Saudi authorities claim a “success rate” of between eighty to ninety
percent.176

Many individuals have also rejected their past support for
terrorist groups without even participating in rehabilitation programs. With
regard to ISIS, hundreds of young Muslims who traveled to Syria and Iraq to
join the terrorist organization have now returned to their home countries,
denounced the group, and expressed regret for travelling in the first place.177 Many of these individuals are facing
lengthy terms of incarceration in their home countries, but an approach focused
on rehabilitation may be a more effective counterterrorism strategy. Peter Neumann argues that
governments should encourage more defectors to publicly counter ISIS’s
recruiting tactics and to “remove legal disincentives” in the form of
imprisonment that deter individuals from speaking out.178

B. War on Drugs

The failure to recognize that many young Muslims who commit
terrorism offenses can be deterred and rehabilitated echoes a similarly held
belief by policymakers and commentators years earlier in the War on Drugs—that
young African Americans convicted of gang-related drug offenses presented a
distinctive threat to American society that called for lengthy punishment.
Perhaps the term that best personified the perceived threat was
“super-predator.” Coined by Princeton Political
Science Professor John Dilulio, super-predators were
predominantly “black inner-city males,” allegedly “hardened, remorseless juveniles”
with “absolutely no respect for human life.”179Dilulio added:

They are perfectly capable
of committing the most heinous acts of physical violence for the most trivial reasons . . . . They fear neither the
stigma of arrest nor the pain of imprisonment . . . .
So for as long as their youthful energies hold out, they will do what comes
“naturally”: murder, rape, rob, assault, burglarize,
deal deadly drugs, and get high.180

The fear of super-predators was
expressed by politicians across the political spectrum. For example, Dilulio co-authored a book with John Walters and William
Bennett, head of the Office of Drug Policy under President George H. W. Bush,
entitled Body Count: Moral
Poverty . . . and How To Win America’s War Against Crime
and Drugs, where they spoke of the need to incapacitate “juvenile
‘super-predators’—radically impulsive, brutally remorseless youngsters, including
ever more pre-teenage boys, who murder, assault, rape, rob, burglarize, deal
deadly drugs, join gun-toting gangs, and create communal disorders.”181 Similarly,
when discussing support for her husband’s War on Drugs agenda, then-First Lady
Hillary Clinton spoke of addressing the need to punish young men who “are often
connected to big drug cartels.”182
She stated, “[T]hey are not just gangs of kids anymore. They are often the
kinds of kids that are called ‘super-predators’—no conscience, no empathy. We
can talk about why they ended up that way, but first we have to bring them to
heel.”183

These views were shared by the
federal legislators who drafted the very bills that led to disproportionately
high sentences for African Americans in the War on Drugs. For example, to
justify the 100-to-1 crack cocaine disparity, Senator Lawton Chiles warned of
people who “will go out and steal, rob, lie, cheat, take money from any
savings, take refrigerators out of their houses, anything they can get their
hands on to maintain that habit,” which has caused an increase in “the crimes
of burglary, robbery, assault, purse snatching, [and] mugging.”184Dilulio himself had a direct influence on federal
legislation, when he testified in front of the Senate Judiciary Committee about
the harm from young African Americans “surrounded by deviant, delinquent, and
criminal adults in chaotic, dysfunctional, fatherless, Godless, and jobless
settings where drug abuse and child abuse are twins, and self-respecting young
men literally aspire to get away with murder.”185

Because of the assumed threat posed
by these young African American men, the focus on addressing the problem was
not rehabilitation, but rather lengthy punishment. And harsh sentencing laws
were believed to be necessary to protect Americans. Furthermore, as with the
War on Terror, because the threat was premised on a violent cultural ideology
ingrained in the offender, the individual circumstances of each defendant or
his crime of conviction did not matter. As Joseph Margulies argues, “A belief
that terrorism always reflects the act of an inherently malevolent disposition,
for which no further explanation is possible or necessary, swims in the same
stream as a similar view of . . . juvenile
super-predators.”186 From this point of view, “[T]he criminal has been
reimagined from one of us—a person for whom society bears some responsibility
and who must therefore be reformed and rehabilitated—to one of them—a monster
who must be separated from us and whose behavior must be monitored and
controlled.”187

However, just like in the terrorism
context, fears of young, African American super-predators unable to
rehabilitate were inaccurate and overblown.188 The increase in violent crime that
led to the super-predator myth has dropped significantly in the past twenty
years.189 Even Dilulio himself has admitted that his views
on super-predators were incorrect and has apologized for his role in establishing
severe penalties that disproportionately harm young African Americans.190Many
now have also recognized that the majority of individuals being sentenced in
the War on Drugs were not violent, hardened criminals, but rather were capable
of rehabilitation and reintegration into society.191

iii. The Negative Effects of Lengthy Incarceration on African American and American Muslim Communities

The faulty premise underlying sentencing policies in the Wars
on Drugs and Terror has not only led to significant prison sentences for many
young African Americans and American Muslims. It has also caused harm to
African American and American Muslim communities more broadly in similar ways.
These negative effects include (1) increasing discrimination by reinforcing stereotypes
of African Americans and Muslims as inherently dangerous, (2) furthering
distrust of law enforcement among African Americans and Muslims, which
undermines government objectives by making these communities less likely to
cooperate in criminal investigations, and (3) failing to effectively rehabilitate drug and terrorism offenders and
reintegrate them into society.

A. War on Drugs

The harsh sentencing laws in the
War on Drugs have had profound, negative consequences for African American communities
throughout the United States. For example, the prison level for African Americans
convicted of drug-related offenses in 2000 was twenty-six times that in 1983.192
In some communities, three-fourths of African American men have served prison
time, and more African Americans are in prison or under correctional
supervision than were enslaved in 1850.193 This mass
incarceration has led to the discrimination and stigmatization of young African
American men, significant distrust of law enforcement in African American
communities, and the failure to effectively rehabilitate offenders during and
after their sentences.

First, the myth
of the “super-predator” and high incarceration rates have caused
discrimination against African American men from a public who view them as
exceptionally dangerous.194 Not only have African Americans been disproportionately
targeted by the police, they have also faced discrimination in a variety of
areas, including employment, housing, and access to public services.195
This mistreatment is due in part to stereotypes of young African Americans as
drug offenders and criminals based on the media hysteria created in the
aftermath of the crack-cocaine epidemic and inner-city gang violence that led
to the creation of harsh criminal penalties in the War on Drugs.196

Second, the severe penalties and
disproportionate targeting of African Americans have also created significant
distrust of law enforcement in African American communities. The sentences are
viewed by many African Americans as illegitimate uses of government power that
have directly harmed their family members and friends.197 As a
consequence, African Americans have higher levels of distrust of law enforcement
when compared to whites and are less likely to cooperate in investigations.198

Third, the focus of drug sentencing
laws on punishment trumped any desire to help rehabilitate offenders. Due to
the belief that young African American convicts were uniquely dangerous and not
worthy of rehabilitation, efforts to support drug treatment and alternatives to
incarceration were rejected. For example, during debate over the 1994 crime
bill, policymakers rejected efforts by members of the Congressional Black
Caucus that would have increased funding for drug treatment by two billion
dollars and early intervention programs by three billion dollars.199
Instead, the law that was eventually passed made it harder for offenders
to rehabilitate by removing their ability to receive Pell Grants for higher
education while incarcerated.200

B. War on Terror

1. Differences Between Communities Affected by the War on Drugs and Terror

Before comparing the harms faced by African American
communities in the War on Drugs and those faced by American Muslims in the War
on Terror, I must first acknowledge important demographic differences between
the two groups. The population of Muslims in the United States is much smaller
than the population of African Americans, and the percentage of Muslims
convicted of terrorism-related crimes is also much smaller than the percentage
of African Americans convicted of drug-related crimes. While the Muslim American
population has been estimated to be at most six to seven million,201 forty-two million identify as
African American.202
Furthermore, as explained above, drug-sentencing policies have had a widespread
impact on African Americans.203
The same cannot be said for terrorism sentencing policies’ effect on Muslims,
as only a few hundred have been charged with terrorism offenses, and the vast majority reject the violent extremist ideology of foreign terrorist
organizations.204

For the most part, these differences do not affect the
arguments made in this Feature. They have no effect on how young African
American and Muslim men have been viewed as uniquely dangerous in the Wars on
Drugs and Terror, respectively, leading to harsh sentencing policies in both
contexts. They do, however, demonstrate why the consequences
of the War on Drugs in the United States has affected a much larger
segment of the American population than those of the War on Terror. This helps
explain why African American communities have been more successful in
advocating for community policing reforms than their Muslim counterparts have
been in changing federal counterterrorism policies.205 Since terrorism offenders
make up a much smaller percentage of American Muslims, one might also expect
that they would not be stereotyped in the same way as African Americans.
However, because Muslims are also a much smaller percentage of the U.S.
population, many Americans do not personally know any Muslims, which, as
demonstrated below, leads to high levels of discrimination toward Muslims and ass0ciation
of Muslims with violence.206

2. Negative Consequences of the War on Terror

Despite the demographic differences between Muslim and
African American communities, American Muslims have faced consequences in the
aftermath of the government’s War on Terror policies similar to those suffered
by African Americans due to the War on Drugs, including discrimination and
stigmatization of Muslims, distrust of law enforcement in Muslim communities,
and the failure to effectively rehabilitate offenders.

a. Discrimination and Stigmatization

As mentioned above, Muslims are disproportionately prosecuted
in the War on Terror. In some instances this is because the policies are
specifically designed to target Muslims (similar to how War on Drugs policies
like the 100-to-1 crack cocaine disparity targeted African Americans). For
example, the material support ban in 18 U.S.C. § 2339B only prohibits
providing material support to a “foreign
terrorist organization” designated by the Secretary of State.207 Providing similar support
to a domestic terrorist organization is not criminalized.208 Since many Muslims accused
of violating section 2339B provide support to foreign groups such as ISIS,
they are convicted of conduct that would not be illegal if it were provided to
domestic extremist groups, like the Ku Klux Klan. For entirely domestic
terrorist crimes, an individual’s material support must be in furtherance of a
specified terrorism offense to be illegal.209

Even outside the material support context, “[t]errorism-like crimes committed byArab or Muslim Americans
get treated as terrorism, but similar crimes bynon-Arabs/non-Muslims . . . are
generally not viewed as terrorism.”210 For example, Tung Yin analyzed
multiple attempted bombings and mass shootings in the United States and found that
those committed by Muslims were more likely to be characterized as “terrorism”
than those committed by non-Muslims.211 Similarly, unlike Muslims,
when Christians commit crimes because “God supposedly told them to do so,” they
are not considered terrorists, but instead their religious zeal is often
treated as a mitigating factor, such as diminished capacity or insanity.212 Due to the Terrorism
Enhancement, how a crime is categorized can have a significant impact on
sentencing, and therefore Muslims can receive higher sentences for similar
conduct committed by non-Muslims.213

Similarly, despite the increase in right-wing extremist and
militia groups,214
government counter-radicalization programs designed to stop individuals from
embracing violent extremism—such as the Obama Administration’s “Countering
Violent Extremism” program215—have focused almost entirely on
terrorism committed by Muslims.216
And, although social scientists agree that there is no one path that
radicalizes an individual to become violent, these programs often “scrutiniz[e] Muslims who are highly religious, hold unsavory
or critical political views of American domestic or foreign policy, and/or are
first- or second-generation Muslim immigrants deemed unassimilated into the
dominant Anglo-Judeo-Christian-American culture.”217 This radicalization
discourse “creates false and stigmatizing equivalences . . . between
Islam, Muslims, and terrorism.”218

By reinforcing the belief that Muslims are uniquely prone to
terrorism, government policies have led to private acts of discrimination
against Muslims as well.219
As Sahar Aziz writes, “As the public interprets the
government’s actions as part of reasonable national security policies, private
actors feel justified in discriminating against Muslims in employment, housing,
education, and public accommodations.”220 This has led to a broad
range of discriminatory acts, including “vandalizing mosques with anti-Muslim
graffiti and dead pigs, burning down children’s play centers,” and “pressur[ing] local governments to
bar mosque constructions and expansions on grounds that they are terrorist
breeding centers.”221 Recent studies have found that
nearly two-thirds of Muslims experienced discrimination in the past year.222 There were 174 reported incidents
of anti-Muslim violence and vandalism in 2015,223 and anti-Muslim hate
crimes are five times more common today than before 9/11.224

b. Distrust of Law Enforcement

As American Muslims feel unjustly targeted by government
practices due to their religious beliefs, their distrust of law enforcement has
increased as well.225
This distrust is caused by “[t]he dominant model of
counterterrorism policing [that] has emphasized coercion and surveillance over
the elicitation of cooperation through trust-building.”226 When communities doubt the
fairness and legitimacy of police tactics (as African Americans did with War on
Drugs policies), they are less likely to cooperate with law enforcement.
American Muslims are no exception.227 For example, one study
found “a robust correlation between perceptions of procedural justice and both
perceived legitimacy and willingness to cooperate among Muslim American
communities in the context of antiterrorism policing.”228 Other research has demonstrated
that private discrimination of Muslims also makes them less likely to cooperate
with law enforcement based on “[p]erceptions that
officials share and act on that animus.”229

Muslims’ unwillingness to cooperate
with law enforcement can have serious negative ramifications for U.S.
counterterrorism policy. When based on actual threats and not overbroad
practices that stereotype an entire faith, law enforcement cooperation
with American Muslims has already played a vital role in preventing terrorist activity.230 Twenty-six percent of
Muslims convicted of terrorism offenses have been implicated by a tip from
family and community members.231
As the FBI has recognized, “[U]pholding and enhancing
the community’s trust [allows] law enforcement [to] counter the spread of . . . extremist ideology.”232Muslims’
distrust may also undermine counterterrorism policy because it can make them
more likely to believe the narrative of foreign terrorist organizations “that
the West is somehow at war with a religion that includes over a billion adherents.”233
As President Obama recognized, “That’s not smart national security.”234

The belief that Muslims are being targeted based on their
religious and political views instead of actual criminal
conduct has also hindered the ability of Muslims to address extremism
within their own communities. For example, counterterrorism policies have
created a chilling effect among young American Muslims who have deeply critical
views of American foreign policy or espouse deviant religious beliefs.235 Instead of engaging with
mainstream Muslim institutions to address their concerns, these individuals are
more likely to interact amongst themselves in secret and become more
susceptible to the views of terrorists abroad.236 As American Muslim cleric YasirQadhi stated, “Like it or
not, when kids find out that their peers are getting 15 years for what looks a
lot like a thought crime, it makes them more secretive because it reinforces
the idea that the government is out to get them.”237

The lengthy sentences that young American Muslims have
received for terrorism-related offenses have, in particular, decreased
incentives for Muslim families to cooperate with counterterrorism officials.238 For example, in the case of Ali Shukri Amin, who received an eleven-year sentence for
tweeting pro-ISIS material and helping his friend travel to Syria, law enforcement
was tipped off to Amin’s Twitter activity by his own family.239 After Amin’s sentencing,
his attorney and a local Muslim leader both indicated that parents may be less
likely to involve law enforcement when their children are recruited by ISIS
online.240 The Muslim leader added, “[Amin’s
parents] were looking for a mentor to come in and help this child navigate away
from this drastic path [he was] taking. They were not looking for their child
to be taken away for 11 years.”241
Another case is Adam Shafi, a twenty-two-year-old who
considered joining ISIS but was stopped by law enforcement before boarding a
flight to Turkey.242Shafi had
been turned in by his own father, who had been communicating with the FBI over
his attorney’s objections.243Shafi was charged with attempting to support ISIS and
could face up to twenty years in prison.244Shafi’s father believes he made a mistake by contacting the
FBI, and his message for other parents now is: “Don’t even think about going to
the government.”245

c. Failure to Effectively Rehabilitate Offenders

Finally, just as with offenders in the War
on Drugs, the government’s focus when convicting young American Muslims in the
War on Terror has not been to promote their rehabilitation, but instead to incapacitate
them with lengthy punitive sentences. Based on fears that, even in
prison, terrorists may cause harm by communicating with those on the outside,
government officials have placed individuals in harsh conditions, including
solitary confinement, and have imposed significant restrictions on their
communications.246
Such policies include Communication Management Units (CMUs), which severely
restrict prisoners’ communications (telephone, mail, visitation)
and monitor their activities twenty-four hours a day.247 Often, the application of
these measures fails to distinguish between hardened terrorists and individuals,
like the ones discussed in this Feature, whose convictions are not tied to any
act of violence or viable threat. For example, SabriBenkahla, who received a ten-year sentence for making false
statements to a grand jury and the FBI, was sent to a CMU, denied contact
visits with family, and only allowed one fifteen-minute call per week. This is
despite the fact that the sentencing judge unequivocally stated that he “is not
a terrorist” and “[h]is likelihood of ever committing another crime is
infinitesimal.”248

Furthermore, not only do lengthy sentences hinder
rehabilitation, but they can also promote recidivism, especially in the
terrorism context. For example, one study analyzing prisoners generally
suggests that “[e]nduring years of separation from
family and community . . . [creates] [a]nger,
frustration, and a burning sense of injustice, . . . [which]
significantly reduce the likelihood that prisoners are able to pursue a viable,
relatively conventional life after release.”249 Others have argued that
significant time in prison can “‘harden[]terrorist defendants
against America, and contribut[e] to the development
or entrenchment of terrorist networks” because of the well-documented
“correlation between prison and extremism.”250 In particular, there is evidence
“to suggest that conditions of confinement can push toward extremism those
terrorist defendants that might have previously lacked very radical beliefs.”251 Therefore, harsh
conditions like CMUs can be counterproductive, increasing the likelihood that
individuals will be dangerous when they eventually get out of prison.252 This is a particular concern
in American prisons, where programs focused on rehabilitating individuals
convicted of terrorism offenses have not been instituted.253

iv. Addressing the Negative Effects of Lengthy Incarceration

While American Muslim and African American
communities have suffered similar harms due to the government’s sentencing
policies in the Wars on Terror and Drugs, the present-day responses to counter
those harms have been very different. In response to the negative effects of
lengthy incarceration caused by the War on Drugs, government officials have
recognized that a more nuanced approach consisting of shorter sentences for
nonviolent offenders and a greater focus on rehabilitation is a more beneficial
way of tackling America’s drug problem. Yet, despite the various reforms that
have been instituted in the War on Drugs, the lessons learned from the War on
Drugs have not yet been applied to help reverse the negative effects caused by
the War on Terror’s harsh sentencing policies.

A. War on Drugs

Over the past decade, increasing
criticism has mounted against punitive drug sentencing policies and the harm
they have caused African American communities. Policymakers have also raised
concerns about the high financial costs associated with lengthy incarceration.254
As a result, a series of reforms have taken place to lower sentences for
drug-related crimes and focus on rehabilitating drug offenders.

The judicial reform with perhaps
the greatest impact on drug sentencing policy was the Supreme Court’s 2005 Booker decision making the Sentencing
Guidelines advisory.255 After Booker,
courts have increasingly varied downward in drug cases when the Guidelines
range produces sentences “that are greater than necessary to achieve the
purposes of sentencing under 18 U.S.C. § 3553.”256
Important changes were also made to the Guidelines themselves. For example, the
Fair Sentencing Act of 2010 reduced the 100-to-1 sentencing disparity
for crack versus powder cocaine to 18-to-1 and eliminated the five-year
mandatory minimum for simple possession of crack cocaine.257 And, the Sentencing
Commission retroactively reduced the offense levels for drug trafficking offenses
by two, leading to the release of thousands of federal inmates.258The
Justice Department has followed suit. As part of his “Smart on Crime”
initiative, Attorney General Eric Holder issued policy memoranda
instructing federal prosecutors to avoid charging mandatory minimums for
nonviolent drug offenders.259In a similar vein, President Obama has granted
clemency to hundreds of federal inmates serving long prison terms for
nonviolent drug offenses.260

At the same time, increased
attention has been given to the treatment and rehabilitation of drug offenders
in lieu of lengthy punitive incarceration. For example, in 2009, New York sent
more drug offenders to treatment instead of prison.261
Studies demonstrate that those receiving treatment have been less likely to
recidivate than those who were incarcerated.262
There has also been an increased focus on treatment for offenders in prison.
The National Institute on Drug Abuse has stated that “[t]reatment offers the best alternative for interrupting the
drug use/criminal justice cycle for offenders with drug problems . . . .
Untreated substance using offenders are more likely to relapse into drug use
and criminal behavior, jeopardizing public health and safety and taxing
criminal justice system resources.”263

B. War on Terror

Although the United States has adopted a variety of reforms
to counter the negative effects of the War on Drugs on African American communities,
the lessons learned from adopting these changes have not yet been translated
into the War on Terror context. A major reason for this difference is that
while Americans across the political spectrum now recognize that young African American
drug offenders were unjustly characterized as irredeemable “super-predators,”264 fears of young American Muslims
as unrepentant violent terrorists continue to dominate public discourse. If
anything, with the rise of ISIS and violent acts committed by Muslims in San
Bernardino and Orlando—as well as
throughout Europe, the Middle East, and other parts of the world—those
fears are more pronounced today. As
a result, politicians, and even judges,265 are pressured to look
“tough” on terrorism, and it is doubtful they would institute reforms that
reduce prison sentences for Muslims convicted of terrorism offenses.266

However, just as policymakers have
recognized the benefits of strengthening efforts to rehabilitate offenders in
the drug enforcement context, they should also establish a
counterterrorism policy that would work with defendants to address the underlying
causes for their criminal conduct and focus on rehabilitation instead of
lengthy punitive incapacitation.267 Such a policy would help
build greater trust of law enforcement in Muslim communities and ensure
terrorism offenders receive the treatment they need to successfully integrate
back into society when their sentences are completed.

This is especially true for the young American Muslims
discussed in this Feature. As explained above, many other countries have
implemented rehabilitation programs to work with young Muslims who have committed terrorism offenses.268Because individuals sympathize with and join terrorist groups for a
variety of different reasons, successful programs “are very individualized in order
to address the grievances that drove someone to extremist groups in the first
place.”269 Such grievances include
the killing and subjugation of Muslims by Western and Middle Eastern
governments, feelings of racial and religious discrimination in their home
countries, as well as personal issues, such as problems with family, school,
mental health, and employment.270
Furthermore, “risk reduction” strategies have proven to be more effective than
“de-radicalization” ones.271
Instead of attempting to change individuals’ political and religious
beliefs—which is very difficult to do—these programs focus on modifying their
behavior so that they are less likely to commit acts of violence or provide
support to militant groups.272

Despite these
efforts around the globe,273
in the United States, young Muslims who have committed terrorism offenses, for
the most part, have no alternative to lengthy incarceration with little to no
rehabilitative component.274
Although many of the defendants discussed in this Feature expressed remorse for their actions, prosecutors routinely
dismissed their statements as self-serving pleas to obtain reduced sentences,
and instead repeated the mantra “that terrorists cannot be deterred or rehabilitated.”275
Recently, however, the U.S. government has begun recognizing that
rehabilitation should play a role in combating support for terrorism among
young American Muslims.276 The Obama Administration’s Countering Violent Extremism program277
and the House of Representatives’ Homeland Security Committee have endorsed
such efforts.278 The FBI
has even worked with community leaders, mental health experts, and religious
figures to intervene with minors and mentally ill individuals.279The most significant efforts have occurred in
Minneapolis.280In the case of Abdullahi Yusuf, who pleaded guilty to
conspiring to provide material support for attempting to fly to Syria to join
ISIS when he was eighteen, the district judge agreed to a presentence
rehabilitation program, allowing Yusuf to stay at a halfway house and receive
counseling and services from a local nonprofit.281 The judge also has appointed an
expert to determine whether other defendants could benefit from similar
services.282

Yet, despite these efforts, the
United States still has no rehabilitation programs in federal prisons for those
serving sentences for terrorism crimes.283
Recognizing this shortcoming, some judges have noted that lengthy terms of
supervised release can be used to both monitor individuals after they have been
released from prison and provide them with resources to help integrate them
back into society.284 In the aftermath of the War on Drugs, treatment programs
have been established by federal courts for drug offenders serving terms of supervised
release to help them “establish[] a sober, employed, law abiding life in an effort
to promote public safety, . . . and to promote rehabilitation.”285
Similar rehabilitation programs should be created for young nonviolent
terrorism offenders while on supervised release. By keeping track of their
whereabouts and providing them rehabilitative resources, such programs would
reduce the need to sentence these individuals to long terms of incarceration.
Overall, just as with the recent changes to War on Drugs policies, in order to
have a more effective and just counterterrorism strategy, policymakers should
not only establish rehabilitation programs for terrorism offenders during and
after their criminal sentences, but also reform sentencing policies like the
Terrorism Enhancement to allow for sentences that properly take into
consideration the individual circumstances of each defendant.

conclusion

Similar to the
War on Drugs, the War on Terror has led to the imposition of lengthy criminal
sentences for young nonviolent offenders. These policies disproportionately
target a particular minority community, resulting in sentences that are contrary
to the purposes delineated by Congress in 18 U.S.C. § 3553(a) and that
undermine effective government policies to combat harm in the United States. In
the War on Drugs, recent changes in judicial precedent, the Sentencing
Guidelines, and charging policies have led to a reduction in the length of
sentences, and policymakers have focused on alternative means of addressing
drug-related crimes and rehabilitating offenders. For the most part, similar
reforms have not been made in the War on Terror.

In recent
years, advocates and academics have argued that changes in terrorism sentencing
laws are necessary to establish more effective and just policies. Said
recommends “that some combination of Congress,
the U.S. Sentencing Commission, and the federal courts establish standards to
help courts better decide when a heightened punishment might be warranted, free
from unsupported assumptions about the nature of terrorism or a particular
defendant.”286 Skinner calls for “a new sentencing framework” based on
“reasonableness (proportionality and necessity), and mitigating (and
aggravating) circumstances.”287
The new framework would “provide courts with legal tools to distinguish between
gradations of terrorist conduct” and “consider[] a defendant’s
‘substantial steps’ toward the terrorism offense and the motives for his
conduct.”288 Human Rights Watch asks the Sentencing Commission to “[c]onduct a study assessing whether the current system of
sentence enhancements for terrorism is furthering appropriate criminal justice
goals and is well-tailored to best meet those goals” and narrow the Terrorism
Enhancement “to apply only to federal crimes of terrorism, as defined in 18
U.S.C. § 2332b(g).”289Dratel argues that prosecutors
and judges should use 18
U.S.C. § 2339B(c), which authorizes the use of civil injunctive authority
in material support cases, to order nonviolent terrorism offenders to
participate in rehabilitation programs in lieu of criminal incarceration.290

These potential
reforms would be important steps in addressing many of the problems analyzed in
this Feature. However, it is unlikely that any will be implemented by
government officials, at least in the short-term. Americans today view
terrorism much differently than “ordinary” violent crimes or drug crimes.291 The “super-predator”—a
remorseless young African American man bent on creating havoc through gang and
drug violence—has been replaced by the “terrorist”—a remorseless young Muslim
man bent on killing as many Americans as possible. Until the discourse shifts
to a more nuanced and realistic framing of the range of individuals convicted
of terrorism crimes—as well as the actual threat faced by the United States—changes
to the current sentencing framework are unlikely. Given that Donald Trump, who
has advocated banning all Muslims from entering the United States, was elected
President, the country appears to be moving in the opposite direction.

Despite Trump’s
alarming rhetoric, certain incremental changes can and should be implemented to
lower sentences and increase rehabilitation efforts for young, nonviolent
Muslims convicted of terrorism offenses. Using their discretion under Booker, more trial judges should issue
lower sentences in terrorism cases to reflect more accurately the circumstances
of the offense and characteristics of the individual defendant. Although courts
of appeals have overturned terrorism sentences that deviate too significantly
from the Guidelines, judges are more insulated from public fears regarding
terrorism than the political branches of government, and are more able to
sanction nuanced sentencing procedures. Moreover, members of all branches of
the federal government have recognized the importance of creating
rehabilitation programs to address the needs and underlying causes of those
convicted of terrorism offenses. Such programs should be formed in the near
future,292 and to be successful, they
should focus on individualized treatment, positive relations with local
community groups, and risk reduction.

In 2009,
Attorney General Eric Holder stated:

Getting
smart on crime requires talking openly about which policies have worked and
which have not. And we have to do so without worrying about being labeled as
too soft or too hard on crime. Getting smart on crime means
moving beyond useless labels and catch-phrases, and instead relying on science
and data to shape policy.293

Although Holder
was addressing the continuing need to reform sentencing laws due to
over-incarceration caused by the War on Drugs, his words are as relevant to the
over-incarceration of young, nonviolent American Muslims caused by the War on
Terror. If the government truly wants to get smart on addressing the threat
from foreign terrorist organizations like ISIS, it should establish fair and
effective sentencing policies that focus on rehabilitation as much as
incapacitation and punishment.

President George W. Bush, Address to a Joint Session of Congress and the American People, White House (Sept. 20, 2001), http://georgewbush-whitehouse‌.archives.gov/news‌/releases/2001/09/20010920-8.html [http://perma.cc/D6WP-K8DQ].

7

Homeland Defense: Hearing Before the S. Comm. on the Judiciary, 107th Cong. 9 (2001) (statement of John Ashcroft, Att’y Gen. of the United States).

United States v. Abu Ali, 528 F.3d 210, 264 (4th Cir. 2008) (internal quotation marks omitted); see also Joshua L. Dratel, The Literal Third Way in Approaching “Material Support for Terrorism”: Whatever Happened to 18 U.S.C. § 2339B(C) and the Civil Injunctive Option?, 57 Wayne L. Rev. 11, 80 (2011) (“The government’s preemptive strategy has also resulted in the expansion of inchoate crimes such as attempt and conspiracy, as making arrests earlier along the time continuum further distances the defendant’s conduct from a completed substantive crime, or even an agreement to commit a specific offense.”).

SeeGeorge D. Brown, Notes on a Terrorism Trial—Preventive Prosecution, “Material Support” and the Role of the Judge AfterUnited States v. Mehanna, 4 Harv. Nat’l Security J. 1, 54 (2012) (“[The Terrorism Enhancement does not reflect] an important value of the criminal law: the gradation of offenses. We do not treat a purse-snatcher like a rapist. The Enhancement reflects a different view: a terrorist is a terrorist.”); James P. McLoughlin, Jr., Deconstructing United States Sentencing Guidelines Section 3A1.4: Sentencing Failure in Cases of Financial Support for Foreign Terrorist Organizations, 28 Law & Ineq. 51, 100, 116 (2010).

McLoughlin, supra note 31, at 68; see also id. at 100 (“There are many meaningful distinctions between defendants convicted of crimes of terrorism, including the ‘materiality’ of their support, the intent with which they gave the support, the organization to which the support was given, the quality and quantum of the support, the duration of the support, the identifiable harm caused by the support, and any identifiable victim of the support. U.S.S.G. section 3A1.4 fails to account for these differences.”).

For example, the Guidelines range for an individual with an offense level of thirty-six would be reduced from 324-405 months to 188-235 months. U.S. Sentencing Guidelines Manual § 5A, sentencing tbl.(U.S. Sentencing Comm’n 2015).

See, e.g., United States v. Willis, 479 F. Supp. 2d 927, 937 (E.D. Wis. 2007) (varying downwards because the “sentence provided a substantial punishment for someone like [Willis], who had never before been to jail and who engaged in no violence”); United States v. McGee, 479 F. Supp. 2d 910, 912 (E.D. Wis. 2007) (giving a below-Guidelines sentence because defendant “had never before been to prison” and “[g]enerally, a lesser period of imprisonment is required to deter a defendant not previously subject to lengthy incarceration than is necessary to deter a defendant who has already served serious time yet continues to re-offend” (quoting United States v. Qualls, 373 F. Supp. 2d 873, 877 (E.D. Wis. 2005))).

50

Some have argued that, despite the Terrorism Enhancement, federal judges can still take into account the circumstances of the offense and defendant in sentencing because, post-Booker, they have the discretion to vary or depart downward where the individual circumstances do not match those of a dangerous terrorist. Indeed, the Sentencing Guidelines themselves permit a downward departure “[i]f reliable information indicates that the defendant’s criminal history category substantially over-represents the seriousness of the defendant’s criminal history or the likelihood that the defendant will commit other crimes . . . .” U.S. Sentencing Guidelines Manual § 4A1.3(b)(1) (U.S. Sentencing Comm’n 2015). In some terrorism cases, district courts have departed downward on that basis. For example, in United States v. Aref, the district court found that a departure to criminal history Category I was warranted because the defendant “has provided for his family until his arrest through lawful employment in various capacities, and there is no indication that he has engaged in any other criminal activity.” United States v. Aref, No. 04-CR-402, 2007 WL 804814, at *3 (N.D.N.Y. Mar. 14, 2007). The problem with this argument is that cases like Aref are the exception to the rule, and, as Wadie Said points out, appellate courts have consistently overturned sentences for terrorism defendants when judges vary downward too significantly from the Guidelines range created by the Terrorism Enhancement. Wadie E. Said, Sentencing Terrorist Crimes, 75 Ohio St. L.J. 477, 525-27 (2014).

President William J. Clinton, Remarks on Signing the Violent Crime Control and Law Enforcement Act of 1994, Am. Presidency Project (Sept. 13, 1994), http://www.presidency‌.ucsb‌.edu/ws/?pid=49072 [http://perma.cc/5MBP-K7PB].

James Forman, Jr., Exporting Harshness: How the War on Crime Helped Make the War on Terror Possible, 33 N.Y.U. Rev. L. & Soc. Change 331, 359-60 (2009); Aziz Z. Huq & Christopher Muller, The War on Crime as Precursor to the War on Terror, 36 Int’l J.L. Crime & Just. 215, 218-19 (2008).

Charles Kurzman, Muslim-American Terrorism in 2014 2-3(2015); Non-Muslims Carried Out More than 90% of All Terrorist Attacks on U.S. Soil, Washington’s Blog (May 1, 2013), http://www.washingtonsblog.com/2013/05/muslims-only-carried-out-2-5-per cent-of-terrorist-attacks-on-u-s-soil-between-1970-and-2012.html [http://perma.cc/RQN4 -LSLA] (noting that only 2.5% of all terrorist attacks on U.S. soil between 1970 and 2012 were carried out by Muslims).

64

Aziz Z. Huq et al., Why Does the Public Cooperate with Law Enforcement? The Influence of the Purposes and Targets of Policing, 17 Psychol. Pub.Pol’y & L. 419, 423 (2011) (“Post-9/11 changes to policing strategies have been primarily targeted towards Muslim, South Asian and Arab Americans.” (citations omitted)); id.(“Terrorism-related criminal investigations by the Federal Bureau of Investigation[] and local law enforcement focus disproportionately on mosques and Muslim civic organizations.” (citations omitted)).

65

SeeNational Strategy for Counterterrorism,White House 3 (2011), http://www‌.white‌house‌.gov‌/sites/default/files/counterterrorism_strategy.pdf [http://‌perma.cc/6BA4-L343] (“The preeminent security threat to the United States continues to be from al-Qa’ida and its affiliates and adherents.” (emphasis and footnote omitted)); see also id.at 10-17 (describing the areas of focus of U.S. counterterrorism strategy).

66

See Rothwell, supra note 3.

67

Punishment and Prejudice: Racial Disparities in the War on Drugs,Hum. Rts. Watch (May 2000) [hereinafter Punishment and Prejudice], http://www.hrw.org‌/legacy‌/reports‌/2000‌/usa‌/Rcedrg00-04.htm [http://perma.cc/JB4C-EUQP].

Said, supra note 50, at 527 (noting that “modern terrorism prosecution now relies largely on material support charges unconnected to any violence and inchoate criminal activity not likely to result in actual violence”).

71

U.S. Sentencing Comm’n, Analysis of the Violent Crime Control and Law Enforcement Act of 1994: Part II, at 13 (1994).

72

Hearing Before the U.S. Sentencing Comm’n Concerning Proposed Sentencing Guideline Amendments 20 (Mar. 14, 1995) (statement of Jay P. McClosky, U.S. Attorney, District of Maine & Chairman, Subcommittee on Sentencing Guidelines, Att’y Gen.’s Advisory Comm. of U.S. Attorneys, & Robert S. Litt, Deputy Assistant Att’y Gen., Criminal Division); see also United States v. Stewart, 590 F.3d 93, 172 (2d Cir. 2009) (Walker, J., concurring in part and dissenting in part) (“Congress expressly mandated that the Sentencing Commission provide for a terrorism enhancement to ensure that crimes of terrorism were met with a punishment that reflects their extraordinary seriousness.”).

73

Stewart, 590 F.3d at 172-73 (Walker, J., concurring in part and dissenting in part) (emphasis and quotations omitted).

74

United States v. Jayyousi, 657 F.3d 1085, 1117 (11th Cir. 2011); United States v. Meskini, 319 F.3d 88, 92 (2d Cir. 2003); see also Said, supra note 50, at 481 (“At the heart of [terrorism sentencing case law] lies a message that terrorism is especially heinous, and those convicted of terrorist crimes are particularly dangerous to the point of being irredeemably incapable of deterrence.”).

75

Said, supra note 50, at 521, 525; see alsoDratel, supra note 11, at 58 (noting that federal sentencing law fails to take into account that “not all terrorism cases are alike, not all terrorism defendants are alike, and the difference in treatment would reflect a difference in threat level presented by the defendant, as well as the individual’s capacity for rehabilitation”).

While the exact figure of young, nonviolent American Muslims charged with crimes connected to terrorist groups remains unavailable, the available data demonstrates that they make up the majority of post-9/11 cases. For example, New America has identified 381 individuals since 9/11 who have been “charged with or died engaging in jihadist terrorism or related activities inside the United States, and Americans accused of such activity abroad.” Peter Bergen et al., Terrorism in America After 9/11, Part I. Terrorism Cases: 2001-Today, New Am. (Sept. 7, 2016) http://www.newamerica.org/in-depth/terrorism-in-america/part-i -overview-terrorism-cases-2001-today [http://perma.cc/P8QE-U8L9]; see also By the Numbers, supra note 5(identifying 368 U.S. prosecutions from 2001 to 2013 of “terror activity associated with groups such as Al Qaeda and its affiliates or inspired by global jihadism”). Of those individuals, at least eighty-one percent were U.S. citizens or permanent residents, eighty-eight percent had never served time in prison, forty-eight percent were monitored by a government informant, and their average age was twenty-nine. Peter Bergen et al., Terrorism in America After 9/11, Part II. Who Are the Terrorists?,New Am. (Sept. 7, 2016),http://‌www‌.newamerica.org/in-depth/terrorism-in-america/who-are-terrorists [http://‌perma.cc‌/EX5W‌-M9GL]; Peter Bergen et al., Terrorism in America After 9/11, Part III.Why Do They Engage In Terrorism?,New Am. (Sept. 7, 2016), http://www.newamerica.org/in -depth/terrorism-in-america/why-do-they-commit-terrorist-acts [http://perma.cc/2QMA -5AK2]; Peter Bergen et al., Terrorism in America After 9/11,Part IV.What Is the Threat to the United States Today?,New Am. (Sept. 7, 2016) [hereinafter Bergen et al., Terrorism in America After 9/11, Part IV], http://www.newamerica.org/in-depth/terrorism-in-america/what -threat‌-united-states-today [http://perma.cc/2CP5-KH72]. Other data demonstrate that the majority of these terrorism offenses were not for committing violent acts, but rather nonviolent conduct, including providing material support, making false statements to law enforcement, and informant-based plots. See, e.g., Illusion of Justice, supra note 28, at 2, 21, 201-02; Lorenzo Vidino & Seamus Hughes, ISIS in America: From Retweets to Raqqa, Geo. Wash. Program on Extremism 7-8 (Dec. 2015), http://‌cchs.gwu.edu/sites/cchs.gwu.edu/files‌/downloads/ISIS%20in%20America%20-%20Full‌%20Report_0.pdf [http://‌perma.cc‌/J88Y‌-DG7J].

Vidino & Hughes,supra note 80, at 5-8; see also Goldman et al., supra note 82 (reporting an average age of twenty-seven).

84

18 U.S.C. § 2339A(a) (2012).

85

Id. § 2339B(a)(1).

86

Skinner, supra note 32, at 330 n.117; Illusion of Justice, supra note 28, at 60-61; see also Holder v. Humanitarian Law Project, 561 U.S. 1, 35 (2010) (finding that material support includes training on how to use humanitarian and international law to peacefully resolve disputes).

U.S. Sentencing Guidelines Manual §§ 5G1.1(a), 5G1.2(d) (U.S. Sentencing Comm’n 2015); United States v. Reifler, 446 F.3d 65, 113 (2d Cir. 2006); see alsoMcLoughlin, supra note 31, at 89 (“[A] defendant who is convicted of a single material support charge and a series of minor related or unrelated offenses can face a sentence dramatically greater than the statutory maximum. The greater sentence is . . . the result of the fact that the minor unrelated charges can add fuel to U.S.S.G. section 3A1.4.”).

Glenn Greenwald, Why Does the FBI Have To Manufacture Its Own Plots If Terrorism and ISIS Are Such Grave Threats?,Intercept (Feb. 26, 2015), http://theintercept.com/2015‌/02‌/26/fbi-manufacture-plots-terrorism-isis-grave-threats [http://perma.cc/7PFU-QXXT].

For example, Hamza Ahmed was indicted for lying about his travel plans and telling the FBI “he knew someone who had traveled to Syria . . . only ‘vaguely’ from high school,” when he had tweeted “Lol my bro I love you” at the individual. Ryan J. Reilly, FBI: When It Comes to @ISIS Terror, Retweets = Endorsements, Huffington Post (Aug. 7, 2015), http://‌www‌.huffing‌ton‌post.com/entry/twitter-terrorism-fbi‌_us‌_55b7e25de4b0224d88‌34466e [http://‌perma.cc‌/S2DW-YA3S]. Bilal Abood was arrested for telling the FBI that he had not pledged obedience to ISIS leader Abu Bakr al-Baghdadi even though he had done so on Twitter. Id. And, Arafat Nagi was arrested for making statements to the FBI “that were ‘inconsistent with his statements [in support of ISIS] on the Twitter account that has been linked to him.’” Id. For a longer list of defendants charged with supporting ISIS, see Goldman et al., supra note 82.

See, e.g., QuintanWiktorowicz, Radical Islam Rising: Muslim Extremism in the West 11-17 (2005) (summarizing the different theories on why individuals become terrorists); Matt Apuzzo, Who Will Become a Terrorist? Research Yields Few Clues, N.Y. Times (Mar. 27, 2016), http://www.nytimes.com/2016/03/28/world/europe/mystery-about-who-will-be‌come-a-terrorist-defies-clear-answers.html [http://perma.cc/7QYF-56A8] (“Despite millions of dollars of government-sponsored research, and a much-publicized White House pledge to find answers, there is still nothing close to a consensus on why someone becomes a terrorist.”).

151

Sahar F. Aziz, Policing Terrorists in the Community, 5 Harv. Nat’l SecurityJ. 147, 166 (2014) (recognizing the “general consensus that there is no profile or single path of ‘radicalization’ towards violence”); Apuzzo, supra note 150 (“[Y]oung American men and women who have been arrested over the past year for trying to help the Islamic State . . . . are so diverse that they defy a single profile.”).

152

Apuzzo, supra note 150 (“Many studies seem to warn of the adolescent condition, singling out young, impatient men with a sense of adventure who are ‘struggling to achieve a sense of selfhood.’”); LiahGreenfeld, To Combat Terrorism, Tackle Mental Illness, N.Y. Times (July 15, 2016), http://www.nytimes.com‌/roomfordebate‌/2016/07/15/can-we-just-live-with‌-terror‌ism/to-combat-terrorism-tackle-mental-illness [http://perma.cc/7NEZ-EJVQ] (“The great majority of ‘homegrown’ or ‘lone-wolf’ terror acts are committed by people with a known history of mental illness, most often depression, which counts social maladjustment and problematic sense of self among its core symptoms.”); Mehdi Hasan, How Islamic Is Islamic State?, New Statesman (Mar. 10, 2015), http://www.newstatesman.com‌/world‌-affairs/2015/03/mehdi-hasan-how-islamic-islamic-state [http://perma.cc/DQ4T -YWFV] (noting that individuals drawn to ISIS have a “sense of emotional and moral outrage” at the political situation in the Middle East and “are angry, or even bored, young men in search of a call to arms and a thrilling cause”); Faiza Patel, Rethinking Radicalization, Brennan Ctr. for Just.10-11 (2011), http://www.brennancenter.org‌/sites/default‌/files‌/legacy‌/RethinkingRadicalization.pdf [http://perma.cc/2S8V-AN8M] (“Empirical research on radicalization conclusively shows that the path to terrorism is far from linear. While studies have identified various factors that may influence the process, including personal circumstances, perceptions of injustice (both local and international), exposure to ideology that promotes violence as “jihad,” and social bonds, it simply does not support the notion of a clear path from personal or political discontent to violence.”).

McLoughlin, supra note 31, at 112 (“The Supreme Court and the Sentencing Commission have opined that the deference to be given to the Sentencing Guidelines derives principally from the fact that the Guidelines were developed based on the experience of thousands of cases over a period of years.”).

Scott Shane, Beyond Guantánamo, a Web of Prisons for Terrorism Inmates, N.Y. Times (Dec. 10, 2011), http://www.nytimes.com/2011/12/11/us/beyond-guantanamo-bay-a-web -of-federal-prisons.html [http://perma.cc/XG52-SF2S]; see also id. (“[I]t appears extraordinarily rare for the federal prison inmates with past terrorist ties to plot violence after their release. The government keeps a close eye on them: prison intelligence officers report regularly to the Justice Department on visitors, letters and phone calls of inmates linked to terrorism. Before the prisoners are freed, F.B.I. agents typically interview them, and probation officers track them for years.”).

163

See, e.g., Samuel J. Rascoff, Counterterrorism and New Deterrence, 89 N.Y.U. L. Rev. 830, 832 (2014) (“Deterrence began to make a small but palpable comeback in the discourse of some security officials and commentators, partly because the effectiveness of alternative approaches, like preemption, had begun to be called into question.” (citations omitted)); National Strategy for Counterterrorism, supra note 65, at 6, 8 (“The successful prosecution of terrorists will . . . deter terrorist activity . . . . [Target hardening] can deter [terrorists] from attacking particular targets or persuade them that their efforts are unlikely to succeed.”).

Dratel, supra note 11, at 41 (discussing a Northern Ireland program that “spawned dozens of public and privately sponsored programs designed to maintain peace, ensure security, address grievances and perceived inequalities, promote healing, and build trust between the police and the community”); Dina Temple-Raston, Methods for Reforming Neo-Nazis Help Fight the Radicalization of Muslims, NPR (May 10, 2016, 4:24 AM), http://‌http://www.npr .org‌/sections/parallels/2016/05/10/477043520/methods-for-reforming-neo-nazis-help-fight -the‌-radicalization-of-muslims [http://perma.cc/5JXH-2FMZ] (discussing a program called “Exit-Deutschland,” “which targeted neo-Nazis and right-wing extremists, groups that German authorities have been working to de-radicalize and fold back into German society for years”).

See, e.g., Dratel, supra note 11, at 37-48; QIASS Report, supra note 172, at 6; see also Temple-Raston, supra note 171 (noting that participation in the German Hayat program “can actually have a very positive effect on sentencing later on”).

18 U.S.C. § 2339A; see also Said, supra note 50, at 506 (“[M]aterially supporting [foreign terrorist organizations] can result in very high sentences for what would otherwise be innocuous and constitutionally protected activity. In contrast, in cases involving purely domestic terrorist crimes with no international bent, the available decisions of the federal circuit courts involve some form of violent activity or conspiracy to commit violence, without exception.”).

See supra Part I; see also Michal Buchhandler-Raphael, What’s Terrorism Got To Do With It? The Perils of Prosecutorial Misuse of Terrorism Offenses, 39 Fla. St. U. L. Rev. 807, 843-44 (2012) (noting “sentencing disparities among similarly situated defendants and lack of uniformity and consistency in charging decisions” and providing an example of “Muhammad, who was a Muslim, was prosecuted under the terrorism statute, [while] McCoy was prosecuted under ‘ordinary’ murder charges”); Yin, supra note 210, at 67 (noting that being labeled a “terrorist” results in a significant sentencing increase).

214

See Kurt Eichenwald, Right-Wing Extremists Are a Bigger Threat to America than ISIS, Newsweek (Feb. 4, 2016, 6:02 AM), http://www.newsweek.com/2016/02/12/right-wing -extremists-militants-bigger-threat-america-isis-jihadists-422743.html [http://‌perma.cc‌/Y3S4‌-2WFE]. A 2015 Georgetown study of 119 lone wolf attackers found that “the majority are white men with criminal records” and “more than half were found to subscribe to white supremacist or extremist far-right ideologies.” EngyAbdelkader, Mental Illness: A Key Factor in ‘Terror,’Huffington Post (Aug. 15, 2016), http://www.huffingtonpost.com‌/entry‌/mental-illness-a-key-factor-in-terror_us_57a49406e4b0ccb023721dcf [http://‌perma.cc‌/BG5N-DEXY]. The study added that terrorism from self-identifying Muslims “poses no greater threat to the public than other forms of domestic radicalization.” Id.

Id. at 186-87; see also Aziz Z. Huq, Private Religious Discrimination, National Security, and the First Amendment, 5 Harv. L. & Pol’y Rev. 347, 349 (2011) (“[R]ecent data on Muslim America suggests that ambient public animus is on the rise, and furthermore increasingly taking the form of legal enactments.”).

Christopher Ingraham, Anti-Muslim Hate Crimes Are Still Five Times More Common Today than Before 9/11, Wash. Post (Feb. 11, 2015), http://www.washingtonpost.com‌/news‌/wonk/wp/2015/02/11/anti-muslim-hate-crimes-are-still-five-times-more-common-today -than‌-before-911/ [http://perma.cc/9T2F-YRQS].

SeeDratel, supra note 11, at 52 (“Currently, Muslim communities believe they are targeted unfairly by law enforcement with respect to terrorism investigations and stings, leading to a ‘circling the wagons’ mentality. That sentiment provides a disincentive to cooperate with authorities on a routine basis.”); Tyler et al., supra note 197, at 367 (“Judgments about procedural justice have been found to influence the perceived legitimacy of law enforcement and thus to affect willingness to comply and to cooperate.”).

As a Human Rights Watch report explained, “counterterrorism efforts, including surveillance and the use of informants, cause such significant harm to community-law enforcement trust that they may understandably deter communities from accepting any government support. Mosque and community leaders may also be reluctant to engage with youth and other members they identify as at risk of committing a crime, out of fear that they will be tainted by association and come under government scrutiny themselves.” Illusion of Justice, supra note ­28, at 176.

228

Tyler et al., supra note 197, at 368; see also Dratel, supra note 11, at 60 (noting “the perception in the community that Muslims are being unfairly targeted in counterterrorism investigations . . . informs community reaction to counterterrorism enforcement”).

229

Huq, supra note 221, at 357.

230

For example, family members have approached government agencies about potential attacks, mosques officials have dissuaded those turning to terrorism, and others have flagged imminent risks to law enforcement. Id. at 358.

Remarks by the President at Eid Reception, White House (July 21, 2016), http://‌www‌.whitehouse.gov/the-press-office/2016/07/21/remarks-president-eid-reception [http://‌perma.cc/QGZ5-ZQT5].

234

Id.; see alsoDratel, supra note 11, at 57 (“[P]roportionality in counterterrorism enforcement is essential in order to imbue the justice system with integrity, consistency, fairness, and logic, and to achieve success in making communities safer.”).

Reitman, supra note 81 (“We want these kids to bring their grievances out in the open. But in the absence of genuine dialogue that could be tempered with some elderly wisdom, young men and women, frustrated at what they perceive as the increasing injustices of our foreign policy, gravitate to clerics with more black-and-white views on Islam and the West.” (quoting American Muslim cleric and professor YasirQadhi)).

237

Id.

238

See, e.g., Scott Shane, From Minneapolis to ISIS: An American’s Path to Jihad, N.Y. Times (Mar. 21, 2015), http://www.nytimes.com/2015/03/22/world/middleeast/from-minneapolis‌-to-isis-an-americans-path-to-jihad.html [http://perma.cc/8RBF-DT9P] (“Parents and friends concerned about a young person drawn to the Islamic State are more likely to call the police, advocates say, if they believe there is an alternative to a long prison sentence.”).

James Austin et al., Unlocking America: Why and How To Reduce America’s Prison Population, JFA Inst. 10 (2007), http://www.jfa-associates.com/publications/srs‌/UnlockingAmerica‌.pdf [http://perma.cc/2FSZ-RTNP]; see alsoDratel, supra note 11, at 59 (“[T]o the extent a particular inmate’s criminality was the product of mental or emotional instability, the separation from other stimuli will only drive them to further emotional and ideological isolation.”).

250

Skinner, supra note 32, at 371; see also QIASS Report, supra note 172, at 11 (“A substantial number of persons with alleged connections to violent extremist organizations have been incarcerated over the past decade, and some are now being released back to the community. A proportion of them have more extreme views and commitments to violence than when they began their detention.”).

251

Skinner, supra note 32, at 372. Skinner gives the example of Al Qaeda leader Ayman al-Zawahiri, who after being subject to mistreatment in an Egyptian prison was transformed from a relative moderate into a violent extremist. Id. at 372-73.

252

Dratel, supra note 11, at 58 (noting the problems with CMUs because they will allow “[t]he more radical and violent [prisoners to] transform the less so, not vice versa” (emphasis omitted)); Skinner, supra note 32, at 373 (noting that “[t]he current sentencing practice of imposing lengthy sentences, across the board to all softcore terrorist defendants, exacerbates th[e] risk [of recidivism]”).

See, e.g., Aziz, supra note 151, at 203 (“[I]mplementation of current ‘hard on terror’ strategies has led to promotions, public recognition, and more votes for law enforcement officers, notwithstanding the significant adverse consequences to Muslim communities’ rights.”); Buchhandler-Raphael, supra note 213, at 846 (noting that state legislatures are “largely motivated by a political incentive to appear ‘tough on terrorism’ by expanding the scope of antiterrorism statutes and allowing for them to cover broader factual contexts . . . in order to satisfy the American people’s demand that aggressive steps be taken to reduce the catastrophic risks of terrorism and ensure their safety”).

267

See Skinner, supra note 32, at 345 (“[I]nclusion of some rehabilitative considerations would focus the sentencing courts on the long-term objectives of this war, which include diminishing the root causes of terrorism.”).

268

See supra Section II.B.3.

269

Temple-Raston, supra note 171; see also QIASS Report, supra note 172, at 7 (“In countering violent extremism, one size does not fit all (or even most).”).

270

See, e.g., Reitman, supra note 81 (“These kids identify as Muslims. And what they see are young Muslims in the tens of thousands being killed in Syria by barrel bombs—and the Western press doesn’t report this. We report on the killers. They see the victims.”); Rosin, supra note 172 (“Organizations like ISIS take advantage of people who, because of racism or religious or political discrimination, have been pushed to the margins of society.”); Temple-Raston, supra note 171 (“Studies have shown that by strengthening family ties, parents and siblings end up providing the support young people were missing and subsequently sought and found in extremist groups.”).

271

SeeDratel,supra note 11, at 39-40.

272

See id.

273

Interestingly, for suspected militants detained in Iraq, the United States military has created a rehabilitative alternative to detention called Task Force 134. See id.at 48.

274

A former National Counterterrorism Center official noted that it is “an abject failure . . . that there is no system in place that doesn’t result in spending 20 years in jail.” Apuzzo, supra note 170.

275

United States v. Bell, 81 F. Supp. 3d 1301, 1319 (M.D. Fla. 2015).

276

Some academics have expressed concerns about the government playing a role in rehabilitating Muslims who have supported foreign terrorist organizations. Sahar Aziz, for example, criticizes strategies of having Muslim community leaders collaborate with the FBI to intervene to “prevent terrorist recruitment of young men who suffer from mental health illnesses, personal crises, or other sources of emotional vulnerability.” Aziz, supra note 151, at 213. She worries that such initiatives “could prove devastating to Muslim communities’ collective liberty interests,” because they promote intra-community spying and censorship and falsely assume “that domestic terrorists who are Muslim are integrated into Muslim-American communities.” Id. at 213-14. While Aziz raises important concerns regarding individuals who have not yet been charged with terrorism-related crimes, this Feature focuses solely on those Muslims who have already been convicted and are awaiting sentencing. To assist in rehabilitating these individuals, coordination between government officials and Muslim community groups would not raise the same concerns.

Similarly, Samuel J. Rascoff argues that government-sponsored rehabilitation programs could be counterproductive and violate the Establishment Clause to the extent they promote “‘Official Islam’: a government-sponsored account of ‘mainstream Islam’ offered by the state in place of radical doctrinal alternatives.” Samuel J. Rascoff, Establishing Official Islam?The Law and Strategy of Counter-Radicalization, 64 Stan. L. Rev. 124, 130 (2012). However, to the extent rehabilitation efforts focus on “risk reduction” and not altering individuals’ political and religious beliefs, the Establishment Clause likely will not be implicated. And, to the extent religion does play a role, community religious groups would be providing counseling, not government officials. Even Rascoff acknowledges that if “grassroots non-governmental organizations play a more decisive role in counter-radicalization efforts,” his arguments “are diminished.” Id. at 180. Notably, religion has played a role in rehabilitating offenders in other contexts, including the use of prison chaplains and religious-based programs like Alcoholics Anonymous. See, e.g., Jones v. Smid, No. 4-89-CV-20859, 1993 WL 719562 (S.D. Iowa Apr. 29, 1993) (holding that the inmate’s participation in a treatment program modeled on precepts of Alcoholics Anonymous did not interfere with the inmate’s practice of his religion or establish religion). Certain federal districts even use religious organizations to help offenders reintegrate into society. See, e.g., Project H.O.P.E. Re-Entry Initiative, U.S. Dep’t Just., http://www.justice.gov/usao-sdal/programs/ex-offender-re -entry-initiative [http://perma.cc/XV7U-LPD7] (discussing the Southern District of Alabama’s Project H.O.P.E. program, which requests the assistance of “service provider[s], business[es], employer[s], non-profit entit[ies], [and] religious organization[s]” to “address the needs of re-entering ex-offenders in order to make their transition back into mai[ns]tream society a success” (emphasis added)).

Apuzzo, supra note 170; see alsoIllusion of Justice, supra note 28, at 175 (“In the US, there are at least a handful of cases where the government adopted a ‘soft intervention’ approach and referred individuals to local community partners.”).

United States v. Bell, 81 F. Supp. 3d 1301, 1318 (M.D. Fla. 2015) (“David Schiavone with the Federal Bureau of Prisons confirmed in his testimony that the BOP currently has no programs for de-radicalizing prisoners convicted of crimes of terrorism.” (citation omitted)); id. at 1325 (“[I]n the years to come, one would expect more comprehensive methods for rehabilitating would-be terrorists will be developed.”); see alsoDratel, supra note 11, at 59 (noting “the invariably long sentences in ‘material support’ cases, and the lack of any legitimate rehabilitative programs for inmates in such facilities”).

284

See, e.g., Bell, 81 F. Supp. 3d at 1325 (“The Court also has the tool of an extended period of supervised release to closely monitor Bell’s activity even after he is released from prison.”); Dratel, supra note 11, at 94 (noting that rehabilitation programs can be created “for convicted defendants as part of their probation or supervised release”).

Dratel, supra note 11, at 93 (noting that, pursuant to their discretionary equitable authority, “courts can be innovative and affirmative in imposing customized conditions such as . . . counseling and other programming (including vocational if appropriate), religious instruction, some form of supervision and reporting, restricted internet access, associational and travel limitations, financial monitoring, and even home detention and/or electronic monitoring” (footnote omitted)).

291

See Buchhandler-Raphael, supra note 213, at 848 (“[S]ince the September 11 attacks, fear and anxiety have dominated the public’s perception of actors who are labeled ‘terrorists,’ and therefore using the ‘terrorism’ rhetoric critically influences public perceptions of crime and punishment.”); id. (noting that with the War on Terror “powerful emotions, particularly hatred and fear, often prevail over rational legal doctrines, resulting in significant deviations in criminal law and procedure” (internal quotation marks omitted)); Huq et al., supra note 64, at 423 (noting that “people may respond differently to counterterrorism policing than to crime-control because they view terrorism as imposing a graver risk of harm to individuals than the more diffuse consequences of ordinary crime” and “may have different normative assessments of crime and terrorism”).